Exhibit 10.44
OFFICE LEASE
- Between -
ZENITH PROFESSIONAL CENTER, LTD.,
a Florida limited partnership
as Landlord
- and -
VFINANCE, INC.
a Delaware corporation authorized to do business in the State of Florida
as Tenant
Dated: As of January 1, 2003
INDEX TO
OFFICE LEASE
SECTION PAGE
BASIC LEASE INFORMATION RIDER.................................................i
1. PREMISES; COMMON AREAS................................................1
2. LEASE TERM; LEASE DATE................................................1
3. RENT..................................................................1
4. SECURITY DEPOSIT......................................................4
5. USE...................................................................4
6. DELAY OF POSSESSION...................................................5
7. ACCEPTANCE OF PREMISES; LANDLORD'S WORK...............................5
8. PARKING...............................................................5
9. BUILDING SERVICES.....................................................5
10. SECURITY..............................................................7
11. REPAIRS AND MAINTENANCE...............................................7
12. TENANT'S ALTERATIONS..................................................9
13. LANDLORD'S ADDITIONS AND ALTERATIONS..................................9
14. ASSIGNMENT AND SUBLETTING.............................................9
15. TENANT'S INSURANCE COVERAGE..........................................11
16. LANDLORD'S INSURANCE COVERAGE........................................12
17. SUBROGATION..........................................................12
18. DAMAGE OR DESTRUCTION BY CASUALTY....................................13
19. CONDEMNATION AND EMINENT DOMAIN......................................13
20. LIMITATION OF LANDLORD'S LIABILITY; INDEMNIFICATION..................14
21. COMPLIANCE WITH ENVIRONMENTAL LAWS AND PROCEDURES....................15
22. COMPLIANCE WITH LAWS AND PROCEDURES..................................17
23. RIGHT OF ENTRY.......................................................17
24. DEFAULT..............................................................17
i
25. LANDLORD'S REMEDIES FOR TENANT'S DEFAULT.............................18
26. LANDLORD'S RIGHT TO PERFORM FOR TENANT'S ACCOUNT.....................18
27. LIENS................................................................18
28. NOTICES..............................................................19
29. MORTGAGE; ESTOPPEL CERTIFICATE; SUBORDINATION........................19
30. ATTORNMENT AND MORTGAGEE'S REQUEST...................................20
31. TRANSFER BY LANDLORD.................................................20
32. SURRENDER OF PREMISES; HOLDING OVER..................................20
33. NO WAIVER; CUMULATIVE REMEDIES.......................................21
34. WAIVER OF JURY TRIAL.................................................21
35. CONSENTS AND APPROVALS...............................................21
36. RULES AND REGULATIONS................................................21
37. SUCCESSORS AND ASSIGNS...............................................21
38. QUIET ENJOYMENT......................................................21
39. ENTIRE AGREEMENT.....................................................21
40. MISCELLANEOUS........................................................21
EXHIBIT(S):
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Exhibit "A" Floor Plan
Exhibit "B" Rules and Regulations
Exhibit "C" Existing Telecommunications Equipment
GUARANTY: None
RIDERS AND ADDENDA
First Addendum
Satellite Dish Rider
Stock Warrant Rider
Right of First Refusal
ii
BASIC LEASE INFORMATION RIDER
OFFICE LEASE
Preamble Date of Lease: January 1, 2003
Page 1
Preamble Landlord: ZENITH PROFESSIONAL CENTER, LTD., a Florida
limited partnership
Page 1
Preamble Tenant: VFINANCE, INC., a Delaware corporation
authorized to do business in the State of
Page 1 Florida
Section 1 Premises: Xxxxx 000, 0000 Xxxxxxxx Xxxxx, Xxxx Xxxxx,
Xxxxxxx, subject to Refusal Right
Page 1 provided in the Right of First Refusal Rider
Section 1 Net Rentable Area of Premises: Approximately 8,787
rentable square feet (includes a
Page 1 common area load factor of 15.87%)
Section 2 Lease Commencement Date: January 1, 2003.
Page 1
Section 2 Expiration Date: August 31, 2008.
Page 1
Section 2 Lease Term: Sixty Eight (68) calendar months.
Page 1
Section 2 Rent Commencement Date: The Lease Commencement Date.
Page 1
Section 3 Base Rent: During the first six (6) months of the
Lease Term, Base Rent shall be $27.00
Page 1 per rentable square foot, to wit: $237,249.00 per
annum, paid in equal monthly installments of
$19,770.75, plus all applicable taxes. Commencing
July 1, 2003, Base Rent shall be reduced to $25.90 per
rentable square foot, to wit: $227,583.33 per annum,
paid in equal monthly installments of $18,965.28, plus
all applicable taxes, and subject to the escalations
to Base Rent set forth in Section 3.(b).
Section 3 Tenant's Percentage Share: 28.46%
Page 2
Section 3 Additional Rent: Estimated to be $6.94 per rentable
square foot, to wit: $60,981.78, per
Page 2 annum, paid in equal monthly installments of
$5,081.82, plus all applicable taxes, but subject to
adjustments and reconciliations, all as provided for
in Section 3 of this Lease.
Sections Security Deposit: $35,869.02, payable by Tenant as
follows: (i) $18,969.00 is already on
3, 4 deposit with landlord and (ii) $16,900.02 payable in
four (4) equal installments of
Page 4 $4,225.00 on March 15, 2003 April 15, 2003, May 15,
2003 and on June 15, 2003.
Section 5 Use of Premises: General office use including
internet banking, stock brokerage and sales,
Page 4 insurance brokerage and sales, and other financial
services.
Tenant's Address for Notices After Lease Commencement
Date:
Tenant
The Premises
Landlord's Address for Notices:
Zenith Professional Center, Ltd.
c/o Brenner Real Estate Group
0000 Xxxx Xxxxxxxxxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
---------
With a copy (for informational purposes only) to:
Proskauer Rose, LLP
Suite 340 West
0000 Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
---------
(i)
Section 8 Number of Unassigned Parking Spaces in
Page 5 Uncovered Parking Area: 36
Section 8 Number of Reserved Parking Spaces in Covered Parking
Area: 8, for which Tenant shall pay
Page 5 $75.00 per space per month for five (5) of the
aforementioned Reserved Parking Space,
subject to increases as set forth in Section 8.
Section 15 Amount of Commercial General Liability Insurance:
Page 11 $2,000,000
Section 40 Tenant's Real Estate Broker:
Page 21 None
Landlord's Real Estate Broker:
Xxxxxxx Real Estate Group
0000 Xxxx Xxxxxxxxxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxx, Xxxxxxx 00000
Certain of the information relating to the Lease,
including many of the principal economic terms, are set forth in the foregoing
Basic Lease Information Rider (the "BLI Rider"). The BLI Rider and the Lease
are, by this reference, hereby incorporated into one another. In the event of
any direct conflict between the terms of the BLI Rider and the terms of the
Lease, the BLI Rider shall control. Where the Lease simply supplements the BLI
Rider and does not conflict directly therewith, the Lease shall control.
IN WITNESS WHEREOF, Landlord and Tenant have signed this
BLI Rider as of this _____ day of ________________, 2003.
Witnesses: "LANDLORD"
--------
ZENITH PROFESSIONAL CENTER, LTD.,
a Florida limited partnership
By: 3010 HOLDINGS, INC., a Florida
corporation, general partner
/s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
President
January 10th, 2003
"TENANT"
------
VFINANCE, INC., a Delaware corporation
authorized to do business in the State
of Florida
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Chief Executive Officer
January 10th, 2003
(iii)
OFFICE LEASE
THIS LEASE ("Lease") is made as of the ____ day of January,
2003, by and between ZENITH PROFESSIONAL CENTER, INC., a Florida limited
partnership ("Landlord"), and VFINANCE, INC., a Delaware corporation authorized
to do business in the State of Florida ("Tenant").
W I T N E S S E T H:
1. PREMISES; COMMON AREAS: Landlord leases to Tenant and Tenant leases from
Landlord the premises in the commercial office building located at 0000 Xxxxxxxx
Xxxxx, Xxxx xx Xxxx Xxxxx, Xxxxxx of Palm Beach, Florida (together with the
covered and uncovered parking facilities sometimes collectively referred to
herein as the "Building") known by that certain suite number set forth in the
Basic Lease Information Rider (the "BLI Rider") attached to the front of this
Lease and incorporated into this Lease by this reference, which space is more
particularly shown on the floor plan attached hereto as Exhibit "A" and by this
reference incorporated herein (the "Premises"). The parties hereby agree that
the Premises contain the number of net rentable square feet set forth in the BLI
Rider. In addition to the Premises, Tenant has the right to use, in common with
others, the lobby, public entrances, public stairways and public elevators of
the Building if any. The common areas serving the Building, including those
referenced above, the parking facilities, and all others, will at all times be
subject to Landlord's exclusive control and management in accordance with the
terms and provisions of this Lease.
2. LEASE TERM; LEASE DATE: The lease term (the "Lease Term") is for the
period of time set forth in the BLI Rider, commencing on the Lease commencement
date set forth in the BLI Rider (the "Lease Commencement Date") and ending on
the Lease expiration date set forth in the BLI Rider (the "Expiration Date").
Tenant's obligation to pay all rent, including Base Rent, Additional Rent and
Other Rent, (collectively, "Rent"), as such terms are hereafter defined, will
commence on the rent commencement date set forth in the BLI Rider (the "Rent
Commencement Date"). For purposes of this Lease, "Lease Year" shall mean and
refer to the period of twelve (12) calendar months commencing on the Lease
Commencement Date, and each successive period of twelve (12) calendar months
during the Lease Term.
3. RENT:
(a) Base Rent. During the Lease Term, Tenant will pay as
the base rent for the Premises (the "Base Rent") the
amounts set forth in the BLI Rider, with same being
payable without demand, setoff or deduction, in
advance, on or before the first day of each month,
in equal monthly installments of the amounts set
forth in the BLI Rider, plus applicable sales and
other such taxes as are now or later enacted.
(b) Escalations to Base Rent. Commencing on the first
anniversary of the Rent Commencement Date, and on
each subsequent anniversary of the Rent Commencement
Date (each such date an "Adjustment Date"), the Base
Rent shall be increased annually to an amount equal
to the Base Rent in effect during the last month of
the first Lease Year, multiplied by a fraction, the
numerator of which shall be the "Index" (as defined
below) published for the tenth (10th) calendar month
of the immediately preceding Lease Year, and the
denominator of which shall be the Index published
for the calendar month of the Rent Commencement Date
provided, however, that the increased Base Rent for
each Lease Year shall not be: (i) less than the Base
Rent for the prior Lease Year multiplied by 103% or
(ii) greater than the Base Rent for the prior Lease
Year multiplied by 105%.
The Base Rent, as increased, shall then be payable during the ensuing Lease Year
in the same manner as otherwise provided for the payment of the Base Rent. The
"Index" shall be defined as the "Consumer Price Index for all Urban
Consumers-All Cities (1982-84 = 100)" (the national index). (Such index being
that published by the Bureau of Labor Statistics of the United States Department
of Labor.) If for any reason the Index is not published for any particular month
during the Lease Term as may be required for the foregoing computation of the
increased Base Rental, then the Index next published shall be used in its stead;
and in the event that the Index shall no longer be published, or if the method
of computing the Index shall be substantially altered, then another index
generally recognized as authoritative and reflecting data substantially similar
to the information used to compute the Index shall be substituted for the Index
as reasonably determined by Landlord. In the event that for any reason
whatsoever (whether due to the lack of an index or dispute or otherwise),
Landlord is unable to notify Tenant of the increased Base Rent payable during
any Lease Year, Tenant shall continue to pay the monthly installments of the
Base Rent payable during the immediately preceding Lease Year, until such time
as notice of the appropriate Base Rent amount is given, at which time Tenant
shall promptly pay the full amount of any deficiency resulting from the
underpayment of Base Rent.
(c) Additional Rent. Tenant shall pay, as Additional
Rent ("Additional Rent"), prorated for that part of
the Lease Term within the applicable calendar year,
Tenant's Percentage Share ("Tenant's Percentage
Share"), as hereafter defined, of the total amount
of (i) the annual operating expenses ("Operating
Expenses"), as hereafter defined, and (ii) the
annual taxes ("Taxes"), for the Building. For all
years during the Lease Term, Landlord shall, in
advance, reasonably estimate for each such calendar
year the total amount of the Additional Rent.
One-twelfth (1/12) of the estimated Additional Rent
(plus all applicable taxes now existing or hereafter
enacted) shall be payable monthly, along with the
monthly payment of the Base Rent. Landlord shall use
its best efforts to make such estimate on or before
January 1 of each calendar year. On or before March
31 following a year for which Additional Rent is
payable hereunder, Landlord shall use its best
efforts to provide Tenant with the amount of the
actual Additional Rent for the previous year, and a
reasonable breakdown of the items included therein,
together with an invoice for any underpayments of
Additional Rent (to be paid within thirty (30) days
following receipt of such invoice, or to be included
with the next monthly payment of Rent, whichever
shall first occur) or a check to Tenant to reimburse
Tenant for any overpayment of Additional Rent. For a
period of thirty (30) days after receipt of the
aforedescribed reconciliation statements, Tenant
shall have the right, upon advance notice, to visit
Landlord's office in the Building during Business
Hours, as hereafter defined, to inspect its books
and records concerning the Additional Rent. The
delivery of the aforedescribed projection statement
after January 1 and/or the reconciliation after
March 31 shall not be deemed a waiver of any of
Landlord's rights to collect monies and/or a waiver
of any of the duties and obligations of Tenant as
described in this section or as provided elsewhere
in this Lease.
(d) Definition of Material Terms.
(i) The term "Operating Expenses" shall mean (1) any and all costs of
ownership, management, operation and maintenance of the Building, including,
without limitation, wages, salaries, professionals' fees, taxes, insurance,
benefits and other payroll burdens of all employees, Building Management fee not
to exceed five percent (5%) of gross receipts, janitorial, maintenance, guard
and other services, building management office rent or rental value, power,
fuel, water, waste disposal, landscaping care, lighting, garbage removal, pest
control, window cleaning, system maintenance, parking area care, and any and all
other utilities, materials, supplies, maintenance, repairs, insurance applicable
to the Building and Landlord's personal property and depreciation on personal
property, and (2) the cost (amortized over such reasonable period as Landlord
shall determine together with interest at the rate of twelve percent (12%) per
annum on the unamortized balance) of any capital improvements made to the
Building by Landlord after the date of this Lease that reduce other Operating
Expenses or made to the Building by Landlord after the date of this Lease that
are required under any governmental law or regulation; provided, however, that
Operating Expenses shall not include real property taxes, depreciation on the
Building other than depreciation on carpeting in public corridors and common
areas, costs of tenants' improvements, real estate broker's commissions,
interest and capital items other than those referred to in subsection (2) above.
Landlord shall maintain accounting books and records in accordance with sound
accounting principles. In determining the amount of Operating Expenses for any
calendar year, (i) if less than one-hundred percent (100%) of the Building shall
have been occupied by tenants and fully used by them, Operating Expenses shall
be increased to an amount equal to the like operating expenses which would
normally be expected to be incurred had such occupancy been one-hundred percent
(100%) and had such full utilization been made during the entire period or (ii)
if Landlord is not furnishing particular work or services (the cost of which if
performed by Landlord would constitute an Operating Expense) to a tenant who has
undertaken to perform such work or service in lieu of the performance thereof by
Landlord, Operating Expenses shall be deemed to be increased by an amount equal
to the additional expense which would reasonably have been incurred during such
period by Landlord had Landlord furnished such work or service to such tenant.
Landlord hereby agrees to deduct each year from the amount of the Operating
Expenses the total amount of any and all sums, amounts or charges paid by Tenant
or other tenants of the Building directly to Landlord or its agent for specific
tenant requested services.
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(ii) The term "Taxes" shall mean the gross amount of all impositions,
taxes, assessments (special or otherwise), water and sewer assessments and other
governmental liens or charges of any and every kind, nature and sort whatsoever,
ordinary and extraordinary, foreseen and unforeseen, and substitutes therefor,
including all taxes whatsoever (except for taxes for the following categories
which shall be excluded from the definition of Taxes: any inheritance, estate,
succession, transfer or gift taxes imposed upon Landlord or any income taxes
specifically payable by Landlord as a separate tax-paying entity without regard
to Landlord's income source as arising from or out of the Building and/or the
land on which it is located) attributable in any manner to the Building, the
land on which the Building is located or the rents (however the term may be
defined) receivable therefrom, or any part thereof, or any use thereon, or any
facility located therein or used in conjunction therewith or any charge or other
amount required to be paid to any governmental authority, whether or not any of
the foregoing shall be designated "real estate tax", "sales tax", "rental tax",
"excise tax", "business tax", or designated in any other manner.
(iii) The term "Tenant's Percentage Share" shall mean the percentage set
forth in the BLI Rider. Landlord and Tenant acknowledge that Tenant's Percentage
Share has been obtained by taking the net rentable area of the Premises, which
Landlord and Tenant hereby stipulate for all purposes is the amount set forth in
the BLI Rider, and dividing such number by the total net rentable area of the
Building, which Landlord and Tenant hereby stipulate for all purposes is 30,872
net rentable square feet, and multiplying such quotient by 100. In the event
Tenant's Percentage Share is changed during a calendar year by reason of a
change in the net rentable area of the Premises, Tenant's Percentage Share shall
thereafter mean the result obtained by dividing the new net rentable area of the
Premises by 30,872 net rentable square feet and multiplying such quotient by 100
and for the purposes of Section 3.(b) Tenant's Percentage Share shall be
determined on the basis of the number of days during such calendar year
applicable to each such Tenant's Percentage Share.
(iv) The term "Rent" shall mean the sum of the Base Rent and the Additional
Rent and the Parking Rent and, in the event of a default hereunder by Tenant,
shall also include Other Rent. The term "Other Rent" is sometimes used herein to
refer to any and all other sums payable by Tenant hereunder, including, but not
limited to, parking charges. Tenant agrees to pay Other Rent upon demand by
Landlord and that Other Rent is to be treated in the same manner as Rent
hereunder, both in terms of the lien for Rent herein provided and in terms of
the default provisions herein contained.
(e) Related Provisions.
(i) Tenant covenants and agrees to pay a late charge for any payment of
Rent not received by Landlord on or before the tenth (10th) day of each month
and for any other payment, such as Other Rent, not received by Landlord on or
before the date when same is due. Said late charge shall be computed from the
first day of the month in the case of Rent and from the date when same is due in
the case of Other Rent. The amount of the late charge shall be an amount equal
to the interest accruing on the sum(s) outstanding, with such interest
commencing on the dates aforesaid, ending on the date of receipt of the sum(s)
by Landlord and having a rate equal to eighteen percent (18%) per annum. In the
event any late charge is due to Landlord, Landlord shall advise Tenant in
writing and Tenant shall pay said late charge to Landlord along with and in
addition to the next payment of Rent.
(ii) Landlord shall notify Tenant in writing of any and all adjustments to
Base Rent. In addition to Base Rent and Additional Rent, Tenant shall and hereby
agrees to pay to Landlord each month a sum equal to any sales tax, tax on
rentals and any other similar charges now existing or hereafter imposed, based
upon the privilege of leasing the space leased hereunder or based upon the
amount of rent collected therefor.
(iii) If Tenant's possession of the Premises commences on any day other
than the first day of the month, Tenant shall occupy the Premises under the
terms of this Lease and the pro rata portion of the Rent shall be paid by
Tenant; provided, however, that in such an event the Lease Commencement Date,
for the purposes of this Lease, shall be deemed to be the first day of the month
immediately following the month in which possession is given.
3
(iv) Additional Rent for the final months of this Lease is due and payable
even though it may not be calculated until subsequent to the Expiration Date of
the Lease. Tenant expressly agrees that Landlord, at Landlord's sole discretion,
may apply the Security Deposit, as hereafter defined, in full or partial
satisfaction of any Additional Rent due for the final months of this Lease. If
said Security Deposit is greater than the amount of any such Additional Rent and
there are no other sums or amounts owed Landlord by Tenant by reason of any
other terms, provisions, covenants or conditions of this Lease, then Landlord
shall refund the balance of said Security Deposit to Tenant as provided herein.
Nothing herein contained shall be construed to relieve Tenant, or imply that
Tenant is relieved, of the liability for or the obligation to pay any Additional
Rent due for the final months of this Lease by reason of the provisions of this
Section, nor shall Landlord be required first to apply said Security Deposit to
such Additional Rent if there are any other sums or amounts owed Landlord by
Tenant by reason of any other terms, provisions, covenants or conditions of this
Lease.
4. SECURITY DEPOSIT: Tenant, concurrently with the execution of this Lease,
has deposited with Landlord the amount set forth in the BLI Rider as the
security deposit ("Security Deposit") hereunder. This sum will be retained by
Landlord as security for the payment by Tenant of the Rent and Other Rent and
for the faithful performance by Tenant of all the other terms and conditions of
this Lease. In the event Tenant fails to faithfully perform the terms and
conditions of this Lease, Landlord, at Landlord's option, may at any time apply
the Security Deposit or any part thereof toward the payment of the Rent and/or
Other Rent and/or toward the performance of Tenant's obligations under this
Lease. In such event, within five (5) days after notice, Tenant will deposit
with Landlord cash sufficient to restore the Security Deposit to its original
amount. Landlord will return the unused portion of the Security Deposit to
Tenant within thirty (30) days after the Expiration Date if Tenant is not in
violation of any of the provisions of this Lease. Landlord may (but is not
obligated to) exhaust any or all rights and remedies against Tenant before
resorting to the Security Deposit. Landlord will not be required to pay Tenant
any interest on the Security Deposit nor hold same in a separate account. If
Landlord sells or otherwise conveys the Building, Landlord will deliver the
Security Deposit or the unapplied portion thereof to the new owner. Tenant
agrees that if Landlord turns over the Security Deposit or the unapplied portion
thereof to the new owner, Tenant will look to the new owner only and not to
Landlord for its return upon expiration of the Lease Term. If Tenant assigns
this Lease with the consent of Landlord (as expressly provided for in this
Lease), the Security Deposit will remain with Landlord for the benefit of the
new tenant and will be returned to such tenant upon the same conditions as would
have entitled Tenant to its return.
5. USE:
(a) General Office Use. Tenant will use and occupy the
Premises solely for general office use and solely
for the operation of the business set forth in the
BLI Rider. Tenant acknowledges that its type of
business, as above specified, is a material
consideration for Landlord's execution of this
Lease. Tenant will not commit waste upon the
Premises nor suffer or permit the Premises or any
part of them to be used in any manner, or suffer or
permit anything to be done in or brought into or
kept in the Premises or the Building, which would:
(i) violate any law or requirement of public
authorities, (ii) cause injury to the Building or
any part thereof, (iii) annoy or offend other
tenants or their patrons or interfere with the
normal operations of HVAC, plumbing or other
mechanical or electrical systems of the Building or
the elevators installed therein, (iv) constitute a
public or private nuisance, or (v) alter the
appearance of the exterior of the Building or of any
portion of the interior other than the Premises
pursuant to the provisions of this Lease. Tenant
agrees and acknowledges that Tenant shall be
responsible for obtaining any special amendments to
the certificate of occupancy for the Premises and/or
the Building and any other governmental permits,
authorizations or consents required solely on
account of Tenant's use of the Premises.
(i) Prohibited Uses. Tenant hereby represents, warrants and agrees that
Tenant's business is not and shall not be used, (i) for the business of
photographic, multilith or multigraph reproductions or offset printing; (ii) as
a savings bank, a savings and loan company open to the general public, (iii) as
a restaurant or bar or for the sale of confectionery, soda, beverages,
sandwiches, ice cream or baked goods or for the preparation, dispensing or
consumption of food or beverages in any manner whatsoever, (iv) as a news or
cigar stand, (v) as an employment agency, labor union office, or music studio,
school (except for the training of employees, clients or customers of Tenant),
or (vi) as a xxxxxx shop or beauty salon, nor shall Tenant's use conflict with
any applicable zoning or land use codes or laws applicable to the Building.
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6. INTENTIONALY OMITTED:
7. ACCEPTANCE OF PREMISES; LANDLORD'S WORK: Tenant
accepts the Premises in "as is" condition, and
acknowledges that Landlord makes no representation
or warranty, express or implied in fact or by law,
as to the condition of the Premises. All
improvements made to the Premises, whether by
Landlord or Tenant, will become the property of
Landlord when attached to or incorporated into the
Premises. Such property will remain the property of
Landlord upon termination of this Lease. The taking
of possession by Tenant (or any permitted assignee
or subtenant of Tenant) of all or any portion of the
Premises for the conduct of business will be deemed
to mean that Tenant has found the Premises, and all
of their fixtures and equipment, acceptable.
8. PARKING:
(a) Unassigned Parking. As long as Tenant is not in
default under this Lease, Landlord will provide
Tenant during the Lease Term with unassigned,
nonexclusive parking spaces in the parking areas for
the number of automobiles set forth in the BLI Rider
in the uncovered parking area of the building (the
"Unassigned Parking Area"). Such parking spaces may
be used only by principals, employees and the
business invitees of Tenant visiting the Premises of
Tenant.
(b) Reserved Parking in Covered Parking Areas. Tenant
shall be entitled to use of the number of reserved
parking spaces (the "Reserved Parking Spaces") set
forth in the BLI Rider, which Reserved Parking
Spaces are located in the covered parking area of
the Building (the "Covered Parking Area"). Tenant
shall pay to Landlord Parking Rent for the Reserved
Parking Spaces in the amounts set forth in the BLI
Rider. The Parking Rent charged for the Reserved
Parking Spaces shall commencing on the first month
of the Lease Term and be increased in the same
manner as Base Rent, as set forth in Section 3.(j)
above. The parking rates charged hereunder will be
in accordance with prevailing market conditions,
consistent with office buildings of similar quality
to and in the immediate geographic area of the
Building. Landlord shall provide Tenant reasonable
advance written notice of any increase in Parking
Rent. Tenant will be billed for monthly Parking Rent
charges along with normal Rent billing and Tenant
may elect to have guest and visitor parking billed
at the same time. If Tenant fails to pay parking
charges when due, Landlord may, by written notice to
Tenant, elect to proceed as provided under the
default provisions of this Lease and/or cease to
provide all or any of the foregoing parking spaces.
(c) Parking Controls. Landlord has and reserves the
right to alter the methods used to control parking
and the right to establish such controls and rules
and regulations (such as parking stickers to be
affixed to vehicles) regarding parking that Landlord
may deem desirable. Without liability, Landlord will
have the right to tow or otherwise remove vehicles
improperly parked, blocking ingress or egress lanes,
or violating parking rules, at the expense of the
offending tenant and/or owner of the vehicle.
9. BUILDING SERVICES:
(a) General. In general, the services set forth below
will be provided by Landlord at a service level set,
defined and regulated by Landlord consistent with
office buildings of similar quality to and in the
same immediate geographic area as the Building.
During the Lease Term, the regular business hours
(the "Business Hours") of the Building will be 8:00
a.m. to 6:00 p.m., Monday through Friday, and on
Saturday, 8:00 a.m. to 6:00 p.m. on a limited basis
so long as Tenant provides Landlord with advance
notice of Tenants requirement for same, except
holidays generally recognized by state and federal
governments. The Building will be accessible to
Tenant, its subtenants, agents, servants, employees,
contractors, invitees or licensees (collectively,
"Tenant's Agents") at all times during Business
Hours.
(b) Specific Services Provided.
(i) Janitorial Service. Landlord agrees to provide during the Lease Term
janitorial services for the Premises customarily provided in office buildings of
similar quality to and in the same immediate geographic area as the Building.
Janitorial service will be provided after Business Hours at the Building, but no
janitorial services will be provided on Saturdays, Sundays and holidays
generally recognized by state and federal government. Should Tenant require
additional janitorial services beyond those customarily provided by Landlord,
Tenant may request same in writing from Landlord and if Landlord agrees to
provide such services, Tenant will be billed for same by Landlord at a
reasonable rate and those costs and expenses when billed will be Other Rent due
under this Lease.
(ii) Electricity. During the Lease Term, electric power will be available
for the purposes of lighting and general office equipment use in amounts
consistent with Building standard electrical capacities and will be separately
metered for the Premises. Tenant shall be responsible for all payments to the
utility authority providing electricity. The Building standard mechanical and
electrical systems are designed to accommodate loads generated by lights and
office equipment such as typewriters, dictating equipment, photocopy equipment,
etc. Tenant acknowledges that Tenant's intended use of the Premises excludes
material use of the Premises beyond Business Hours. Material use shall be deemed
to mean the operation of an additional "shift", either full or part time, or use
of the Premises after Business Hours in any way that may preclude or interfere
with the providing of janitorial services to the Premises. In the event Tenant's
use of the Premises requires more electrical power than set forth above, whether
by intensity of use, load or type of equipment, Tenant may then be billed for
such additional use and such xxxxxxxx will be billed to Tenant as Other Rent.
Landlord will utilize Landlord's customary method of billing Tenant for excess
electrical power consumption. At Landlord's option, Landlord, at Tenant's
expense, may have an engineer estimate Tenant's usage, and xxxx Tenant at
standard utility rates for the excess usage or install a submeter for the
purposes of monitoring Tenant's excess power consumption. Landlord and Tenant
agree that Landlord's implementation of the electrical monitoring and billing
procedures set forth herein shall in no way be construed so as to deem Landlord
a private or public utility company. Landlord reserves the right, after Business
Hours, to turn off all unnecessary lighting in the unoccupied areas of the
Building and the Premises to minimize the energy consumption of the Building in
both the common areas and the Premises. Landlord and Tenant acknowledge that the
electrical meter serving the Premises meters electricity for the entire floor of
the Building where the Premises are located and that the electrical xxxx for
such meter is received and paid for by Tenant. Upon completion of the
Improvements (as defined in the First Addendum, attached hereto) (the
"Improvement Completion Date"), Landlord and Tenant shall cause the xxxx for the
electrical meter to be sent directly to Landlord. From and after the Improvement
Completion Date, Tenant shall pay to Landlord, as Additional Rent, the amount of
$1,100 per month (plus all applicable sales taxes), along with each monthly
payment of Base Rent, for Tenant's electricity usage. Landlord shall, at the end
of each calendar quarter (that is every three (3) months, commencing on January
1 of each year) provide to Tenant a written statement of the cost of electricity
paid for the floor of the Building where the Premises are located. Tenant shall
be liable for 55.77% of such amount, which percentage is based on the
proportionate share of the Premises for the floor of the Building where the
Premises are located (that is the square footage of the Premises, of 8,787
divided by the square footage of the floor of the Building where the Premises
are located, of 15,756). Landlord shall also provide a written reconciliation of
any amounts which may be due to either Landlord or Tenant, based on Tenant's
payment of $1,100 per month. To the extent that the reconciliation indicates
that Tenant owes money to Landlord, Tenant shall remit the required amount to
Landlord in the next upcoming payment of Rent. In the event that the
reconciliation requires Landlord to remit money to Tenant, Landlord shall
provide such payment to Tenant along with the reconciliation.
6
(iii) HVAC Services. Landlord agrees to provide, during Business Hours,
heating, ventilating and air conditioning for the purposes of comfort control by
way of an individual HVAC unit for the Premises. Landlord and Tenant agree that
Landlord's HVAC system is not designed to cool machinery and equipment. Tenant
shall obtain and provide to Landlord, at Tenant's sole cost and expense, a
written service and maintenance agreement for the HVAC system at the Premises
with a service contracting company reasonably acceptable to Landlord. Landlord
shall make available to Tenant from time to time a list of approved service
contractors. Tenant shall provide to Landlord, on an annual basis, renewals of
the service contract for the HVAC system. Commencing on the date when the
Refusal Space, as defined the Right of First Refusal Rider, attached hereto, is
leased to another tenant, and such other tenant takes occupancy (the "Refusal
Space Commencement Date"), Landlord shall thereafter be responsible to control
the HVAC system and maintain the HVAC system. Landlord shall maintain
temperatures within the Premises at reasonable levels, based on reasonable
building management practices. The cost and expense for maintaining the HVAC
system shall, from and after the Refusal Space Commencement Date, become an
Operating Expense under this Lease.
(iv) Water and Sewer. Landlord agrees to provide municipally supplied cold
water and sewer services to the common areas for lavatory purposes.
(v) Elevator Service. Landlord will provide elevator service during
Business Hours and, at Landlord's sole discretion, Landlord may provide
restricted elevator service during non-Business Hours.
(c) Interruption of Services. It is understood and
agreed that Landlord does not warrant that any of
the services referred to above, or any other
services which Landlord may supply, will be free
from interruption. Tenant acknowledges that any one
or more of such services may be suspended by reason
of accident or repairs, alterations or improvements
necessary to be made, or by strikes or lockouts, or
by reason of operation of law, or other causes
beyond the control of Landlord. No such interruption
or discontinuance of service will be deemed an
eviction or a disturbance of Tenant's use and
possession of the Premises or any part thereof, or
render Landlord liable to Tenant for damages or
abatement of Rent or relieve Tenant from the
responsibility of performing any of Tenant's
obligations under this Lease.
10. SECURITY:
(a) Landlord's Responsibility. Landlord shall: (1)
install a system to reasonably control access to the
Building and parking areas, which shall be monitored
by a central monitoring station on a twenty-four
(24) hour basis.
(b) Tenant's Responsibility. Tenant shall: (1) abide by
all policies, procedures and rules and regulations
for use of the access system, (2) report promptly
the loss or theft of all keys which would permit
unauthorized entrance to the Premises, Building or
parking areas, (3) report to Landlord the employment
or discharge of employees and their vehicle's make,
model, and license number, (4) promptly report to
Landlord door-to-door solicitation or other
unauthorized activity in the Building or parking
areas, and (5) promptly inform the Landlord's
Building manager in the event of a break-in or other
emergency.
(c) Interruption of Security. Tenant acknowledges that
the above security provisions may be suspended or
modified at Landlord's sole discretion or as a
result of causes beyond the reasonable control of
Landlord. No such interruption, discontinuance or
modification of security service will constitute an
eviction, constructive eviction, or a disturbance of
Tenant's use and possession of the Premises, and
further, no interruption, discontinuance or
modification of security service will render
Landlord liable to Tenant or third-parties for
damages, abatement of Rent, or otherwise, or relieve
Tenant of the responsibility of performing Tenant's
obligations under this Lease.
7
11. REPAIRS AND MAINTENANCE:
(a) Landlord's Responsibilities. During the Lease Term,
Landlord shall define, set, and maintain the level
of repairs and maintenance for the Building, the
common areas, and all other areas serving the
Building, in a manner comparable to office buildings
of similar quality to and in the immediate
geographic area of the Building. Landlord's
responsibilities with respect to this paragraph are
as follows: (1) the structural and roof systems of
the Building and parking areas, (2) the Building
standard electrical and mechanical systems, (3) the
primary water and sewer systems of the Building, (4)
the Building common areas and the common area
furniture, fixtures, and equipment, (5) the
landscaped areas in and about the Building, (6) the
parking areas and (7) replacement of Building
standard light bulbs in the common areas.
(b) Tenant's Responsibilities. During the Lease Term,
Tenant will repair and maintain the following at
Tenant's expense:
(i) The interior portion of the demising walls, the interior partition
walls of the Premises and their wall-covering, and the entry door to the
Premises.
(ii) The electrical and mechanical systems not considered Building standard
which have been installed by either Landlord or Tenant, for the exclusive use
and benefit of Tenant. The following examples are for clarification and are not
all inclusive: (a) electrical services for computers or similar items, (b)
projection room equipment such as dimmers, curtains, or similar items, (c) water
closet plumbing, kitchen plumbing or similar items, (d) HVAC for other than
comfort cooling in the Premises, (e) security systems for the Premises, (f)
telephone system for the Premises; and (g) other similar systems.
(iii) Except for the janitorial services, if any, set forth in Section
11.(a) of this Lease, the repair and maintenance of the floor covering of the
Premises, including VAT flooring, ceramic tiles, marble, wood flooring, or
similar coverings, shall be performed by Landlord upon Tenant's request, at
Tenant's expense, and Tenant will be billed for same as Other Rent. At least
once per year, if necessary, Landlord will clean Tenant's carpeting at Tenant's
expense to be billed to Tenant as Other Rent. Should additional cleaning be
requested by Tenant, such cleaning will be available at Tenant's expense and
will be billed to Tenant as Other Rent.
(iv) All cabinets and millwork (regardless of ownership) so long as said
cabinets and millwork are for the exclusive use and benefit of Tenant.
(v) All other personal property, improvements or fixtures, except Building
standard improvements and those items enumerated in Section 11.(a) hereof. Those
items to be repaired and maintained by Tenant include, but are not limited to,
the following: (a) ceiling tiles and ceiling grid, (b) molding or other woodwork
and paneling, (c) light fixtures and bulbs, (d) draperies, blinds or wall
hangings, (e) glass partition walls, (f) water closets, sinks and kitchen areas,
(g) doors and locksets, and (h) vaults, safes, or secured areas. For the
aforesaid items, Landlord may elect, with Tenant's approval (which approval will
not be unreasonably withheld) to maintain and repair same at Tenant's expense
and Tenant will be billed for same as Other Rent.
(c) Repairs and Maintenance; Miscellaneous.
Notwithstanding any of the provisions of this
Section 11 to the contrary, Landlord shall have no
responsibility to repair or maintain the Building,
any of its components, the common areas, the
Premises, or any fixture, improvement, trade
fixture, or any item of personal property contained
in the Building, the common areas, and/or the
Premises if such repairs or maintenance are required
because of the occurrence of any of the following:
(i) the acts, misuse, improper conduct, omission or
neglect of Tenant or Tenant's Agents, or (ii) the
conduct of business in the Premises. Should Landlord
elect to make repairs or maintenance occasioned by
the occurrence of any of the foregoing, Tenant shall
pay as Other Rent all such costs and expenses
incurred by Landlord. Landlord shall have the right
to approve in advance all work, repair, maintenance
or otherwise, to be performed under this Lease by
Tenant and all of Tenant's repairmen, contractors,
subcontractors and suppliers performing work or
supplying materials. Tenant shall be responsible for
all permits, inspections and certificates for
accomplishing the above. Tenant shall obtain lien
waivers for all work done in or to the Premises.
8
12. TENANT'S ALTERATIONS:
(a) General. During the Lease Term, Tenant will make no
alterations, additions or improvements in or to the
Premises, of any kind or nature, including, but not
limited to, alterations, additions or improvements
in, to, or on, telephone or computer installations
(any and all of such alterations, additions or
improvements are collectively referred to in this
Section 12 as the "Alteration(s)"), without the
prior written consent of Landlord, which consent
shall not be unreasonably withheld. Should Landlord
consent to any proposed Alterations by Tenant, such
consent will be conditioned upon Tenant's agreement
to comply with all requirements established by
Landlord, including safety requirements and the
matters referenced in Section 20 of this Lease. As
stated herein, all Alterations made hereunder will
become Landlord's property when incorporated into or
affixed to the Building. However, at Landlord's
option Landlord may, at the expiration of the Lease
Term, require Tenant, at Tenant's expense, to remove
Alterations made by or on behalf of Tenant and to
restore the Premises to their original condition.
13. LANDLORD'S ADDITIONS AND ALTERATIONS: Landlord has
the right to make changes in and about the Building
and parking areas. Such changes may include, but not
be limited to, rehabilitation, redecoration,
refurbishment and refixturing of the Building and
expansion of or structural changes to the Building.
The right of Tenant to quiet enjoyment and peaceful
possession given under the Lease will not be deemed
breached or interfered with by reason of Landlord's
actions pursuant to this paragraph so long as such
actions do not materially deprive Tenant of its use
and enjoyment of the Premises.
14. ASSIGNMENT AND SUBLETTING:
(a) Prohibition on Assignment and Subletting. Neither
Tenant nor Tenant's legal representatives or
successors in interest by operation of law or
otherwise shall assign, mortgage, hypothecate or
otherwise encumber this Lease or enter into a
sublease or license agreement with respect to any
portion of the Premises or permit all or any portion
of the Premises to be used by others, without the
prior written consent of Landlord, which consent may
be granted by Landlord in accordance with the terms
and conditions of this Lease. Any issuance or
transfer of stock in any corporate tenant or
subtenant or any interest in any non-corporate
entity tenant or subtenant, by sale, exchange,
merger, consolidation, operation of law, or
otherwise, or creation of new stock or interests, by
which an aggregate of more than fifty (50%) percent
of Tenant's stock or equity interests shall be
vested in one or more parties who are not
stockholders or interest holders as of the date of
this Lease, however accomplished, and whether in a
single transaction or in a series of related or
unrelated transactions, shall be deemed an
assignment of this Lease. This subsection shall not
apply to sales of stock by persons other than those
deemed "insiders" within the meaning of the
Securities Exchange Act of 1934 as amended, which
sales are effected through any recognized securities
exchange. Any modification or amendment to any
sublease of any portion of the Premises shall be
deemed a further sublease of this Lease.
(b) Request for Consent. If Tenant requests Landlord's
consent to a specific assignment or sublease (a
"Transfer"), it shall submit in writing to Landlord,
not later than thirty (30) days prior to any
anticipated Transfer, (i) the name and address of
the proposed assignee or subtenant (the "Proposed
Transferee"), (ii) a duly executed counterpart of
the proposed agreement of assignment or sublease,
(iii) reasonably satisfactory information as to the
nature and character of the business of the Proposed
Transferee, as to the nature and character of its
proposed use of the Premises or portion thereof to
be sublet, and otherwise responsive to the criteria
set forth in Subsection 14.(d) and (iv) banking,
financial, or other credit information relating to
the Proposed Transferee reasonably sufficient to
enable Landlord to reasonably determine the
financial responsibility, creditworthiness, and
character of the Proposed Transferee.
9
(c) Landlord's Options. Landlord shall have the
following options to be exercised within fifteen
(15) business days from submission of Tenant's
request for Landlord's consent to a specific
Transfer:
(i) If Tenant proposes to assign this Lease or sublet all or substantially
all of the Premises, Landlord shall have the option to cancel and terminate this
Lease as of the proposed commencement date for the transfer.
(ii) If any proposed sublease shall be for less than all or substantially
all of the Premises or if it shall be for less than the balance of the Lease
Term, Landlord shall have the option of canceling and terminating this Lease
only as to such portion of the Premises and such portion of the Lease Term
covered by the proposed sublease, effective as of the proposed commencement date
of the sublease. If Landlord exercises this option, all Rent for the Premises
shall be equitably apportioned as of the commencement date of the sublease.
(d) Landlord's Consent. If Landlord does not elect one
(1) of the two (2) options provided in Subsection
14.(c), Landlord shall not unreasonably withhold or
delay its consent to a proposed Transfer. Landlord
shall be deemed to have reasonably withheld its
consent to any proposed transfer unless all of the
following conditions have been established to
Landlord's reasonable satisfaction:
(i) The Proposed Transferee has sufficient financial wherewithal to
discharge its obligations under this Lease and the proposed agreement of
assignment or the sublease, as the case may be and as determined by Landlord's
criteria for selecting Building Project tenants and has a net worth,,
experience, and reputation which is not less than the greater of (1) the net
worth, experience, and reputation which Tenant had on the Commencement Date, or
(2) the net worth, experience, and reputation of Tenant immediately prior to the
request for Landlord's consent to the proposed Transfer.
(ii) The Proposed Transfer shall not, in Landlord's reasonable judgment,
cause physical harm to the Building or harm to the reputation of the Building
which would result in an impairment of Landlord's ability to lease space in the
Building or a diminution in the rental value of space in the Building.
(iii) The proposed use of the Premises by the Proposed Transferee will be a
use permitted under this Lease and will not violate any restrictive covenants or
exclusive use provisions applicable to Landlord.
(iv) The Proposed Transferee shall not be any person or entity which shall
at that time be a tenant, subtenant, or other occupant of any part of the
Building Project, or who dealt with Landlord or Landlord's agent (directly or
through a broker) with respect to space in the Building during the six (6)
months immediately preceding Tenant's request for Landlord's consent.
(v) The proposed use of the Premises by the Proposed Transferee will not
require alterations or additions to the Premises or the Building Project to
comply with applicable law or governmental requirements and will not negatively
affect insurance requirements or impose environmental risks.
(vi) Any mortgagee of the Building will consent to the proposed Transfer.
(vii) There shall be no default by Tenant, beyond any applicable grace
period, under any of the terms, covenants, and conditions of this Lease at the
time that Landlord's consent to any such transfer is requested and on the date
of the commencement of the term of any such proposed transfer.
10
Tenant acknowledges that the foregoing is not intended to be an exclusive list
of the reasons for which Landlord may reasonably withhold its consent to a
proposed transfer. Tenant expressly, knowingly, and voluntarily waives any
right, claim, or remedy otherwise available to Tenant for money damages (nor
shall Tenant claim any money damages by way of set-off, counterclaim, or
defense) based upon any claim or assertion by Tenant that Landlord has
unreasonably withheld or unreasonably delayed its consent or approval to any
proposed transfer pursuant to this Lease. Tenant's sole remedy in such an event
shall be to institute an action or proceeding seeking specific performance,
injunctive relief, or declaratory judgment.
(e) Overages. If Tenant effects any transfer, then
Tenant thereafter shall pay to Landlord a sum equal
to (a) the Base Rent, Additional Rent, Parking Rent,
Other Rent, or other consideration paid to Tenant by
any transferee which is in excess of the rent then
being paid by Tenant to Landlord under this Lease
for the portion of the Premises so assigned or
sublet (on a pro-rated, square footage basis) , and
(b) any other profit or gain (after deducting any
necessary expenses incurred) realized by Tenant from
the transfer. The net rent, or other consideration
paid to Tenant shall be calculated by deducting from
the gross rent, or other consideration reasonable
and customary real estate brokerage commissions
actually paid by Tenant to third parties, tenant
improvement allowances, rent concessions, the actual
cost of improvements to the Premises made by Tenant
for the transferee, and other direct out-of-pocket
costs actually incurred by Tenant in connection with
the transfer (so long as the costs are commercially
reasonable and are commonly incurred by landlords in
leasing similar space). All sums payable by Tenant
pursuant to this paragraph shall be payable to
Landlord as Other Rent immediately upon receipt by
Tenant.
(f) No Release. Notwithstanding Landlord's consent to
any Transfer, Tenant shall remain liable to Landlord
for the prompt and continuing payment of all forms
of Rent, payable under this Lease and the
performance of all other covenants of this Lease.
Consent by Landlord to a transfer shall not relieve
Tenant from the obligation to obtain Landlord's
written consent to any further transfer. If Landlord
consents to a transfer, in no event shall any
permitted transferee assign or encumber this Lease
or its sublease, or further .sublet all or any
portion of its sublet space, or otherwise suffer or
permit the sublet space or any part thereof to be
used or occupied by others, without Landlord's prior
written consent in each instance. If this Lease is
nevertheless assigned, or the Premises are sublet or
occupied by anyone other than Tenant, Landlord may
accept rent from such assignee, subtenant, or
occupant and apply the net amount thereof to the
rent reserved in this Lease, but no such assignment,
subletting, occupancy, or acceptance of rent shall
be deemed a waiver of the requirement for Landlord's
consent set forth in this section or constitute a
novation or otherwise release Tenant from its
obligations under this Lease.
(g) Permitted Subtenants. Notwithstanding any provision
of this Paragraph 14. to the contrary, Tenant shall
be entitled to sublease or license space within the
Premises to the following entities which are either
wholly owned subsidiaries or affiliated entities of
Tenant: (a) vFinance Investments, Inc., vFinance
Capital LC, vFinance Investments Holdings, Inc.,
vFinance Executive Services, Inc. and vFinance
Holdings, Inc.
15. TENANT'S INSURANCE COVERAGE:
(a) Required Coverages. Tenant agrees that, at all times
during the Lease Term (as well as prior and
subsequent thereto if Tenant or any of Tenant's
Agents should then use or occupy any portion of the
Premises), it will keep in force, with an insurance
company licensed to do business in the State of
Florida, and acceptable to Landlord, (i) without
deductible, commercial general liability insurance,
including coverage for bodily injury and death,
11
property damage and personal injury and contractual
liability as referred to below, in the amount of not
less than the amount set forth in the BLI Rider,
combined single limit per occurrence for injury (or
death) and damages to property, (ii) with deductible
of not more than Five Thousand Dollars ($5,000.00),
insurance on an "All Risk or Physical Loss" basis,
including sprinkler leakage, vandalism, malicious
mischief, fire and extended coverage, covering all
improvements to the Premises, fixtures, furnishings,
removable floor coverings, equipment, signs and all
other decoration or stock in trade, in the amounts
of not less than the full replacement value thereof,
and (iii) workmen's compensation and employer's
liability insurance, if required by statute. Such
policies will: (i) include Landlord and such other
parties as Landlord may reasonably designate as
additional insured's, (ii) be considered primary
insurance, (iii) include within the terms of the
policy or by contractual liability endorsement
coverage insuring Tenant's indemnity obligations
under Section 20, and (v) provide that it may not be
canceled or changed without at least thirty (30)
days prior written notice from the company providing
such insurance to each party insured thereunder.
Tenant will also maintain throughout the Lease Term
worker's compensation insurance with not less than
the maximum statutory limits of coverage.
(b) Policy Requirements. The insurance coverages to be
provided by Tenant will be for a period of not less
than one year. At least fifteen (15) days prior to
the Lease Commencement Date, Tenant will deliver to
Landlord original certificates of all such paid-up
insurance; thereafter, at least fifteen (15) days
prior to the expiration of any policy Tenant will
deliver to Landlord such original certificates as
will evidence a paid-up renewal or new policy to
take the place of the one expiring.
16. LANDLORD'S INSURANCE COVERAGE:
(a) Required Coverages. Landlord will at all times
during the Lease Term maintain a policy or policies
of insurance insuring the Building against loss or
damage by fire, explosion or other hazards and
contingencies typically covered by insurance for an
amount acceptable to the mortgagees encumbering the
Building. Landlord reserves the right to self
insure.
(b) Tenant not to Affect Landlord's Insurance Coverages.
Tenant will not do or permit anything to be done
upon or bring or keep or permit anything to be
brought or kept upon the Premises which will
increase Landlord's rate of insurance on the
Building. If by reason of the failure of Tenant to
comply with the terms of this Lease, or by reason of
Tenant's occupancy (even though permitted or
contemplated by this Lease), the insurance rate
shall at any time be higher than it would otherwise
be, Tenant will reimburse Landlord for that part of
all insurance premiums charged because of such
violation or occupancy by Tenant. Tenant agrees to
comply with any requests or recommendation made by
Landlord's insurance underwriter inspectors.
17. SUBROGATION:
(a) Mutual Waiver of Subrogation. Each party will look
first to any insurance in its favor before making
any claim against the other party for recovery for
loss or damage resulting from fire or other
casualty, and to the extent that such insurance is
in force and collectible. To the extent permitted by
law, each of Landlord and Tenant hereby waives and
releases all rights of subrogation under their
respective insurance policies required under this
Lease. Each of Landlord and Tenant will cause each
such insurance policy to be properly endorsed to
evidence such waiver and release of subrogation in
favor of Landlord.
(b) Tenant's Improvements and Personal Property. Tenant
acknowledges that Landlord will not carry insurance
on improvements, furniture, furnishings, trade
fixtures, equipment installed in or made to the
Premises by or for Tenant, and Tenant agrees that
Tenant, and not Landlord, will be obligated to
promptly repair any damage thereto or replace the
same.
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18. DAMAGE OR DESTRUCTION BY CASUALTY:
(a) Termination. If by fire or other casualty the
Premises are totally damaged or destroyed, or the
Building is partially damaged or destroyed to the
extent of twenty-five per cent (25%) or more of the
replacement cost thereof (even though the Premises
may not be damaged), Landlord will have the option
of terminating this Lease or any renewal or
extension thereof by serving written notice upon
Tenant within one hundred and eighty (180) days from
the date of the casualty and any prepaid Rent or
Other Rent will be prorated as of the date of
destruction and the unearned portion of such Rent
will be refunded to Tenant without interest.
(b) Election for Restoration. If by fire or other
casualty the Premises are damaged or partially
destroyed to the extent of twenty-five per cent
(25%) or more of the replacement cost thereof and
the provisions of Section 18.(a) above are not
applicable, then (i) if the unexpired Lease Term is
less than two (2) years, excluding any theretofore
unexercised renewal option, Landlord may either
terminate this Lease by serving written notice upon
Tenant within twenty (20) days of the date of
destruction or Landlord may elect to restore the
Premises, or (ii) if the unexpired Lease Term is
more than two years, including any previously
exercised renewal option, Landlord will restore the
Premises.
(c) Less than Major Damage. If by fire or other casualty
the Premises are damaged or partially destroyed to
the extent of substantially less than twenty-five
percent (25%) of the replacement cost thereof and
the unexpired Lease Term, including any previously
exercised renewal option is more than two years and
the provisions of Section 18.(a) above are not
applicable, then Landlord will restore the Premises.
(d) Apportionment of Rent. In the event of restoration
by Landlord, all Base Rent and Other Rent paid in
advance shall be apportioned as of the date of
damage or destruction and all such Base Rent and
Other Rent as above described thereafter accruing
shall be equitably and proportionately adjusted
according to the nature and extent of the
destruction or damage, pending substantial
completion of rebuilding, restoration or repair. In
the event the destruction or damage is so extensive
as to make it unfeasible for Tenant to conduct
Tenant's business in the Premises, Rent and Other
Rent under this Lease will be completely abated
until the Premises are substantially restored by
Landlord or until Tenant resumes use and occupancy
of the Premises, whichever shall first occur.
Landlord will not be liable for any damage to or any
inconvenience or interruption of business of Tenant
or any of Tenant's Agents occasioned by fire or
other casualty.
(e) Restoration. Restoration, rebuilding or repairing
will be at Landlord's sole cost and expense, subject
to the availability of applicable insurance
proceeds. Landlord shall have no duty to restore,
rebuild or replace Tenant's personal property and
trade fixtures. Notwithstanding anything to the
contrary in this Lease, including, but not limited
to this Section 18, Landlord's obligation(s) to
repair, rebuild or restore the Building or the
Premises shall exist only to the extent of insurance
proceeds received by Landlord in connection with the
condition or event which gave rise to Landlord's
obligation to repair, rebuild or restore.
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19. CONDEMNATION AND EMINENT DOMAIN:
(a) Substantial Taking. If all or a substantial part of
the Premises are taken for any public or
quasi-public use under any governmental law,
ordinance or regulation or by right of eminent
domain or by purchase in lieu thereof, and the
taking would prevent or materially interfere with
the use of the Premises for the purpose for which
they are then being used, this Lease will terminate
and the Rent and Other Rent will be abated during
the unexpired portion of this Lease effective on the
date physical possession is taken by the condemning
authority. Tenant will have no claim to the
condemnation award.
(b) Less Than Substantial Taking. In the event a portion
of the Premises is taken for any public or
quasi-public use under any governmental law,
ordinance or regulation, or by right of eminent
domain or by purchase in lieu thereof, and this
Lease is not terminated as provided in paragraph A
above, Landlord may, at Landlord's expense, restore
the Premises to the extent necessary to make them
reasonably tenantable. The Base Rent and Other Rent
payable under this Lease during the unexpired
portion of the Lease Term shall be adjusted to such
an extent as may be fair and reasonable under the
circumstances. Tenant shall have no claim to the
condemnation award with respect to the leasehold
estate but, in a subsequent, separate proceeding,
may make a separate claim for trade fixtures
installed in the Premises by and at the expense of
Tenant and Tenant's moving expense. In no event will
Tenant have any claim for the value of the unexpired
Lease Term.
(c) Taking Affecting Building. Notwithstanding the
foregoing, even if the Premises are not affected in
whole or in part by a taking, Landlord will have the
right to terminate this Lease upon ten (10) days
prior written notice to Tenant if a material portion
of the Building is taken by condemnation or eminent
domain proceedings. Upon any such termination,
Landlord and Tenant will each be released from all
further liability under this Lease.
20. LIMITATION OF LANDLORD'S LIABILITY; INDEMNIFICATION:
(a) Tenant's Personal Property. All personal property
placed or moved into the Building will be at the
sole risk of Tenant or other owner. Landlord will
not be liable to Tenant or others for any damage to
person or property arising from Environmental
Concerns, as hereafter defined, theft, vandalism,
HVAC malfunction, the bursting or leaking of water
pipes, any act or omission of any cotenant or
occupant of the Building or of any other person, or
otherwise.
(b) Limitation of Liability. Notwithstanding any
contrary provision of this Lease: (i) Tenant will
look solely (to the extent insurance coverage is not
applicable or available) to the interest of Landlord
(or its successor as Landlord hereunder) in the
Building for the satisfaction of any judgment or
other judicial process requiring the payment of
money as a result of any negligence or breach of
this Lease by Landlord or its successor or of
Landlord's managing agent (including any beneficial
owners, partners, corporations and/or others
affiliated or in any way related to Landlord or such
successor or managing agent) and Landlord has no
personal liability hereunder of any kind, and (ii)
Tenant's sole right and remedy in any action or
proceeding concerning Landlord's reasonableness
(where the same is required under this Lease) will
be an action for declaratory judgment and/or
specific performance.
(c) Indemnity. Tenant agrees to indemnify, defend and
hold harmless Landlord and its agents from and
against all claims, causes of actions, liabilities,
judgments, damages, losses, costs and expenses,
including reasonable attorneys' fees and costs
through all appeals, incurred or suffered by
Landlord and arising from or in any way connected
with the Premises or the use thereof or any acts,
omissions, neglect or fault of Tenant or any of
Tenant's Agents, including, but not limited to, any
breach of this Lease or any death, personal injury
or property damage occurring in or about the
Premises or the Building or arising from
Environmental Concerns, as hereafter defined. Tenant
will reimburse Landlord upon request for all costs
incurred by Landlord in the interpretation and
enforcement of any provisions of this Lease and/or
the collection of any sums due to Landlord under
this Lease, including collection agency fees, and
reasonable attorneys' fees and costs, regardless of
whether litigation is commenced, and through all
appellate actions and proceedings if litigation is
commenced.
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21. COMPLIANCE WITH ENVIRONMENTAL LAWS AND PROCEDURES:
(a) Hazardous Waste. "Hazardous Waste" shall mean toxic
or hazardous waste,pollutants or substances,
including, without limitation, bio hazardous
materials, medical waste, asbestos, PCBs, petroleum
products and by-products, substances defined or
listed as "hazardous substance", "toxic substance",
"toxic pollutant", or similarly identified substance
or mixture, in or pursuant to any "Environmental
Law". "Environmental Law" shall include, but is not
limited to, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as
amended, 42 X.X.X .xx.0000, et seq., the Hazardous
Materials Transportation Act, 49 X.X.X.xx. 1802, et
seq., the Resource Conservation and Recovery Act, 42
U.S.C.ss.6901, et seq., the Toxic Substance Control
Act of 1976, as amended, 15 X.X.X.xx. 2601, et seq.,
and the Clean Water Act, 33 U.S.C.ss.446 et seq., as
amended. The term "Environmental Law" also includes,
but is not limited to, any present and then
applicable federal, state and local laws, statutes,
ordinances, rules, regulations and the like, as well
as common law or other approval of a governmental
authority relating to compliance with Environmental
Law by the Premises requiring notification or
disclosure of releases of Hazardous Substances to
any governmental authority or other person or
entity, imposing environmental conditions or
requirements in connection with permits or other
authorization for lawful activity at the Premises.
(b) Tenant's Covenants. Tenant shall not manufacture or
dispose of any Hazardous Substances at the Premises
or store or use any Hazardous Substance at the
Premises in such quantities, concentrations, forms
or levels, or otherwise in a manner which is in
violation of any applicable Environmental Laws.
Tenant shall comply with all Environmental Laws and
other ordinances and regulations applicable to the
Premises, and shall promptly comply with all
governmental orders and directives for the
correction prevention and abatement of any
violations or nuisances in or upon, or connected
with, the Premises, all at Tenant's sole cost and
expense. To the extent that Tenant generates any
medical or biohazardous waste in conjunction with
Tenant's use of the Premises, Tenant, at Tenant's
sole cost and expense, shall obtain and maintain
throughout the Lease Term a service contract with a
duly licensed medical or biohazardous waste
transportation and disposal company. Copies of such
service contract shall be provided to Landlord each
year during the Lease Term.
(c) Indemnification by Tenant.
(i) Environmental Contamination. Tenant hereby agrees to indemnify Landlord
and hold Landlord harmless from and against any and all losses, liabilities,
including strict liability, damages, injuries, expenses, including reasonable
attorneys' fees for attorneys of Landlord's choice, costs of any settlement or
judgment and claims of any and every kind whatsoever paid, incurred or suffered
by, or asserted against Landlord by any person or entity or governmental agency
for, with respect to, or as a direct or indirect result of, the presence on or
under, or the escape, seepage, leakage, spillage, discharge, emission or release
from the Premises of any Hazardous Waste (including, without limitation, any
losses, liabilities, including strict liability, damages, injuries, expenses,
including reasonable attorneys' fees for attorneys of Landlord's choice, costs
of any settlement or judgment or claims asserted or arising under any
Environmental Law, and any and all other statutes, laws, ordinances, codes,
rules, regulations, orders or decrees regulating, with respect to or imposing
liability, including strict liability, substances or standards of conduct
concerning any Hazardous Waste), regardless of whether within Tenant's control
provided that the foregoing was occasioned by the acts or negligence of Tenant,
its agents, employees or licensees.
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(ii) Continuing Indemnification. The aforesaid indemnification and hold
harmless agreement shall benefit Landlord from the date hereof and shall
continue notwithstanding any termination this Lease and, without limiting the
generality of the foregoing such obligations shall continue for the benefit of
Landlord and any subsidiary of Landlord during and following any possession of
the Premises thereby or any ownership of the Premises thereby, whether arising
by eviction, surrender by Tenant or otherwise, such indemnification and hold
harmless agreement to continue forever.
(iii) Notice of Environmental Complaint. If Tenant shall receive any notice
of: (1) the happening of any material event involving the spill, release, leak,
seepage, discharge or cleanup of any Hazardous Waste at the Premises or in
connection with Tenant's operations thereon; or (2) any complaint, order,
citation or material notice with regard to air emissions, water discharges or
any other environmental, health or safety matter affecting Tenant (an
"Environmental Complaint") from any person or entity, then Tenant immediately
shall notify Landlord orally and in writing of said notice.
(d) Landlord's Reserved Rights. Landlord shall have the
right but not the obligation (and without limitation
of Landlord's rights under this Lease) to enter onto
the Premises or to take such other actions as it
shall deem necessary or advisable to clean up,
remove, resolve or minimize the impact of, or
otherwise deal with, any such Hazardous Waste or
Environmental Complaint following receipt of any
notice from any person or entity having jurisdiction
asserting the existence of any Hazardous Waste or an
Environmental Complaint pertaining to the Premises
or any part thereof which, if true, could result in
an order, suit or other action against Tenant and/or
which, in Landlord's sole opinion, could jeopardize
its security under this Lease. All reasonable costs
and expenses incurred by Landlord in the exercise of
any such rights shall be payable by Tenant upon
demand as Other Rent if same were occasioned by the
activities of Tenant, its employees or licensees.
(e) Environmental Audits. If Landlord shall have good
reason to believe that Hazardous Waste has been
discharged on the Premises by Tenant, its employees
or licensees, Landlord shall have the right, in its
sole discretion, to require Tenant to perform
periodically to Landlord's satisfaction (but not
more frequently than annually unless an
Environmental Complaint shall be then outstanding),
at Tenant's expense, an environmental audit and, if
deemed necessary by Landlord, an environmental risk
assessment of: (a) the Premises; (b) Hazardous Waste
management practices and/or (c) Hazardous Waste
disposal sites used by Tenant. Said audit and/or
risk assessment must be by an environmental
consultant reasonably satisfactory to Landlord.
Should Tenant fail to perform any such environmental
audit or risk assessment within thirty (30) days
after Landlord's request, Landlord shall have the
right to retain an environmental consultant to
perform such environmental audit or risk assessment.
All costs and expenses incurred by Landlord in the
exercise of such rights shall be secured by this
Lease and shall be payable by Tenant upon demand as
Other Rent.
(f) Breach. Any breach of any warranty, representation
or agreement contained in this Section shall be an
Event of Default and shall entitle Landlord to
exercise any and all remedies provided in this Lease
or otherwise permitted by law.
(g) Radon Gas. In accordance with Florida Law, the
following disclosure is hereby made:
RADON GAS: Radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in sufficient
quantities, may present health risk to persons who are exposed
to it over time. Levels of radon that exceed Federal and State
Guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained
from your county public health unit.
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22. COMPLIANCE WITH LAWS AND PROCEDURES: Tenant will promptly comply with all
applicable laws, guidelines, rules, regulations and requirements, whether of
federal, state, or local origin, applicable to the Premises and the Building,
including those for the correction, prevention and abatement of nuisance, unsafe
conditions, or other grievances arising from or pertaining to the use or
occupancy of the Premises. Accordingly, Tenant agrees that Tenant and Tenant's
Agents shall comply with all operation and maintenance programs and guidelines
implemented or promulgated from time to time by Landlord or its consultants,
including, but not limited to, those matters set forth in subsections (b) and
(c) below, in order to reduce the risk to Tenant, Tenant's Agents or any other
tenants of the Building of injury from Environmental Concerns.
23. RIGHT OF ENTRY: Landlord and its agents will have the right to enter the
Premises during all reasonable hours to make necessary repairs to the Premises,
provided however that Landlord will provide advanced written or telephone notice
to Tenant, to the extent reasonable and practical under the circumstances which
require Landlord to have reason to enter the Premises. In the event of an
emergency, Landlord or its agents may enter the Premises at any time, without
notice, to appraise and correct the emergency condition. Said right of entry
will, after reasonable notice, likewise exist for the purpose of removing
placards, signs, fixtures, alterations, or additions which do not conform to
this Lease. Landlord or its agents will have the right to exhibit the Premises
at any time to prospective tenants within one hundred and eighty days (180)
before the Expiration Date of the Lease.
24. DEFAULT:
(a) Events of Default. If (1) Tenant vacates or abandons
the Premises prior to the Expiration Date in
contravention of the terms and provisions of this
Lease, or (2) Tenant fails to fulfill any of the
terms or conditions of this Lease or any other Lease
heretofore made by Tenant for space in the Building
or (3) any execution or attachment is issued against
Tenant or taken or occupied by someone other than
Tenant, or (4) Tenant or any of its successors or
assigns or any guarantor of this Lease ("Guarantor")
should file any voluntary petition in bankruptcy,
reorganization or arrangement, or an assignment for
the benefit of creditors or for similar relief under
any present or future statute, law or regulation
relating to relief of debtors, or (5) Tenant or any
of its successors or assigns or any Guarantor should
be adjudicated bankrupt or have an involuntary
petition in bankruptcy filed against it, or (6)
Tenant shall permit, allow or suffer to exist any
lien, judgment, writ, assessment, charge, attachment
or execution upon Landlord's or Tenant's interest in
this Lease or to the Premises, and/or the fixtures,
improvements and furnishings located thereon; then,
Tenant shall be in default hereunder.
(b) Tenant's Grace Periods. If (1) Tenant fails to pay
Rent or Other Rent within ten (10) days of the date
due or (2) Tenant fails to cure any other default
within ten (10) days after written notice from
Landlord specifying the nature of such default
(unless such default is of a nature that it cannot
be completely cured within said ten (10) day period
and steps have been diligently commenced to cure or
remedy it within such ten (10) day period and are
thereafter pursued with reasonable diligence and in
good faith), then Landlord shall have such remedies
as are provided under this Lease and/or under the
laws of the State of Florida.
(c) Repeated Late Payment. Regardless of the number of
times of Landlord's prior acceptance of late
payments and/or late charges, (i) if Landlord
notifies Tenant two (2) times in any 6-month period
that Base Rent or any Other Rent has not been paid
when due, then any other late payment within such
6-month period shall automatically constitute a
default hereunder and (ii) the mere acceptance by
Landlord of late payments in the past shall not,
regardless of any applicable laws to the contrary,
thereafter be deemed to waive Landlord's right to
strictly enforce this Lease, including Tenant's
obligation to make payment of Rent on the exact day
same is due, against Tenant.
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25. LANDLORD'S REMEDIES FOR TENANT'S DEFAULT:
(a) Landlord s Options. If Tenant is in default of this
Lease, Landlord may, at its option, in addition to
such other remedies as may be available under
Florida law:
(i) terminate this Lease and Tenant's right of possession; or
(ii) terminate Tenant's right to possession but not the Lease and/or
proceed in accordance with any and all provisions of Section 25.(b) below.
(b) Landlord's Remedies.
(i) Landlord may without further notice reenter the Premises either by
force or otherwise and dispossess Tenant by summary proceedings or otherwise, as
well as the legal representative(s) of Tenant and/or other occupant(s) of the
Premises, and remove their effects and hold the Premises as if this Lease had
not been made, and Tenant hereby waives the service of notice of intention to
re-enter or to institute legal proceedings to that end; and/or at Landlord's
option,
(ii) All Rent and all Other Rent for the balance of the Term will, at the
election of Landlord, be accelerated and the full amount of same shall become
immediately due thereupon and be paid, together with all expenses of every
nature which Landlord may incur such as (by way of illustration and not
limitation) those for attorneys' fees, brokerage, advertising, and refurbishing
the Premises in good order or preparing them for re-rental; and/or at Landlord's
option,
(iii) Landlord may re-let the Premises or any part thereof, either in the
name of Landlord or otherwise, for a term or terms which may at Landlord's
option be less than or exceed the period which would otherwise have constituted
the balance of the Lease Term, and may grant concessions or free rent or charge
a higher rental than that reserved in this Lease; and/or at Landlord's option,
(iv) Tenant or its legal representative(s) will also pay to Landlord as
liquidated damages any deficiency between the Rent and all Other Rent hereby
reserved and/or agreed to be paid and the net amount, if any, of the rents
collected on account of the lease or leases of the Premises for each month of
the period which would otherwise have constituted the balance of the Lease Term.
26. LANDLORD'S RIGHT TO PERFORM FOR TENANT'S ACCOUNT: If
Tenant fails to observe or perform any term or
condition of this Lease within the grace period, if
any, applicable thereto, then Landlord may
immediately or at any time thereafter perform the
same for the account of Tenant. If Landlord makes
any expenditure or incurs any obligation for the
payment of money in connection with such performance
for Tenant's account (including reasonable
attorneys' fees and costs in instituting,
prosecuting and/or defending any action or
proceeding through appeal), the sums paid or
obligations incurred, with interest at eighteen
percent (18%) per annum, will be paid by Tenant to
Landlord within ten (10) days after rendition of a
xxxx or statement to Tenant. In the event Tenant in
the performance or non-performance of any term or
condition of this Lease should cause an emergency
situation to occur or arise within the Premises or
in the Building, Landlord will have all rights set
forth in this paragraph immediately without the
necessity of providing Tenant any advance notice.
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27. LIENS:
(a) Statutory Construction Lien Notice. In accordance
with the applicable provisions of the Florida
Construction Lien Law and specifically Florida
Statutes,ss. 713.10, no interest of Landlord whether
personally or in the Premises, or in the underlying
land or Building of which the Premises are a part or
the leasehold interest aforesaid shall be subject to
liens for improvements made by Tenant or caused to
be made by Tenant hereunder including, without
limitation, the Sign, as provided for in Section
40.(r) below. Further, Tenant acknowledges that
Tenant, with respect to improvements or alterations
made by Tenant or caused to be made by Tenant
hereunder, shall promptly notify the contractor
making such improvements to the Premises of this
provision exculpating Landlord's liability for such
liens.
(b) No Liens. Notwithstanding the foregoing, if any
construction lien or other lien, attachment,
judgment, execution, writ, charge or encumbrance is
filed against the Building or the Premises or this
leasehold, or any alterations, fixtures or
improvements therein or thereto, as a result of any
work action or inaction done by or at the direction
of Tenant or any of Tenant's Agents, Tenant will
discharge same of record within ten (10) days after
the filing thereof, failing which Tenant will be in
default under this Lease. In such event, without
waiving Tenant's default, Landlord, in addition to
all other available rights and remedies, without
further notice, may discharge the same of record by
payment, bonding or otherwise, as Landlord may
elect, and upon request Tenant will reimburse
Landlord for all costs and expenses so incurred by
Landlord plus interest thereon at the rate of
eighteen percent (18%) per annum.
28. NOTICES: Notices to Tenant under this Lease will be addressed to Tenant and
mailed or delivered to the address set forth for Tenant in the BLI Rider.
Notices to Landlord under this Lease (as well as the required copies thereof)
will be addressed to Landlord (and its agents) and mailed or delivered to the
address set forth in the BLI Rider. Notices will be personally delivered or
given by registered or certified mail, return receipt requested. Notices
delivered personally will be deemed to have been given as of the date of
delivery and notices given by mail will be deemed to have been given forty-eight
(48) hours after the time said properly addressed notice is placed in the mail.
Each party may change its address from time to time by written notice given to
the other as specified above.
29. MORTGAGE; ESTOPPEL CERTIFICATE; SUBORDINATION:
(a) Mortgage of the Building. Landlord has the
unrestricted right to convey, mortgage and refinance
the Building, or any part thereof. Tenant agrees,
within seven (7) days after notice, to execute and
deliver to Landlord or its mortgagee or designee
such instruments as Landlord or its mortgagee may
require, certifying the amount of the Security
Deposit and whether this Lease is in full force and
effect, and listing any modifications. This estoppel
certificate is intended to be for the benefit of
Landlord, any purchaser or mortgagee of Landlord, or
any purchaser or assignee of Landlord's mortgage.
The estoppel certificate will also contain such
other information as Landlord or its designee may
request.
(b) Subordination. This Lease is and at all times will
be subject and subordinate to all present and future
mortgages or ground leases which may affect the
Building and/or the parking areas and to all
recastings, renewals, modifications, consolidations,
replacements, and extensions of any such
mortgage(s), and to all increases and voluntary and
involuntary advances made thereunder. The foregoing
will be self-operative and no further instrument of
subordination will be required. Landlord hereby
agrees that it shall, upon written request by
Tenant, use its commercially reasonable efforts to
obtain and deliver in favor of Tenant a
non-disturbance agreement from the first mortgage
holder for the Building. Landlord makes no
representation or warranty that it will actually be
able to obtain a non-disturbance agreement in favor
of Tenant and such failure shall not be an event of
default on the part of Landlord under this Lease nor
affect the subordination of this Lease contained in
the first sentence of this Section 29.(b). Tenant
hereby agrees to give any holder of any first
mortgage on the Building, by registered or certified
mail, a copy of any default notice served upon
Landlord by Tenant provided Tenant has been provided
advance written notice of the name and address of
such first mortgage holder.
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30. ATTORNMENT AND MORTGAGEE'S REQUEST:
(a) Attornment. If any mortgagee of the Building comes
into possession or ownership of the Premises, or
acquires Landlord's interest by foreclosure of the
mortgage or otherwise, upon the mortgagee's request
Tenant will attorn to the mortgagee.
(b) Estoppel Certificate. Tenant agrees that within
seven (7) days after request by any mortgagee of
the Building, Tenant will execute, acknowledge and
deliver to the mortgagee a notice in form and
substance satisfactory to the mortgagee, setting
forth such information as the mortgagee may require
with respect to this Lease and/or the Premises. If
for any reason Tenant does not timely comply with
the provisions of this Section, Tenant will be
deemed to have confirmed that this Lease is in full
force and effect with no defaults on the part of
either part and without any right of Tenant to
offset, deduct or withhold any Rent or Other Rent.
31. TRANSFER BY LANDLORD: If Landlord's interest in the Building terminates by
reason of a bonafide sale or other transfer, Landlord will, upon transfer of the
Security Deposit to the new owner, thereupon be released from all further
liability to Tenant under this Lease.
32. SURRENDER OF PREMISES; HOLDING OVER:
(a) Expiration Date. Tenant agrees to surrender the
Premises to Landlord on the Expiration Date (or
sooner termination of the Lease Term pursuant to
other applicable provisions hereof) in as good
condition as they were at the commencement of
Tenant's occupancy, ordinary wear and tear, and
damage by fire and windstorm excepted.
(b) Restoration. In all events, Tenant will promptly
restore all damage caused in connection with any
removal of Tenant's personal property. Tenant will
pay to Landlord, upon request, all damages that
Landlord may suffer on account of Tenant's failure
to surrender possession as and when aforesaid and
will indemnify Landlord against all liabilities,
costs and expenses (including all reasonable
attorneys' fees and costs if any) arising out of
Tenant's delay in so delivering possession,
including claims of any succeeding tenant, provided
however that Tenant's obligation to restore does not
include the reasonable wear and tear to the Premises
which would be expected to have occurred to the
extent that Tenant has reasonably maintained the
Premises during the Lease Term, as required under
this Lease.
(c) Improvements. Upon expiration of the Lease Term,
Tenant will not be required to remove from the
Premises Building standard items, all of such
Building standard items are the property of
Landlord. However, should Tenant, prior to the
expiration of the Lease Term or during the Lease
Term, install or cause to be installed fixtures,
trade fixtures or any tenant improvements in excess
of Building standard, Landlord shall have the option
of retaining same or requiring Tenant to remove
same. Should Landlord elect to cause Tenant to
remove such items, the cost of removal of same, upon
Landlord's election and notice to Tenant, shall be
at Tenant's sole cost and expense. Landlord has no
obligation to compensate Tenant for any items which
are required hereunder to remain on or with the
Premises.
(d) Holdover Rent. Without limiting Landlord's rights
and remedies, if Tenant holds over in possession of
the Premises beyond the end of the Lease Term,
during the holdover period the Rent will be double
the amount of the Rent due and payable for the last
month of the Lease Term.
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(e) Offer of Surrender. No offer of surrender of the
Premises, by delivery to Landlord or its agent of
keys to the Premises or otherwise, will be binding
on Landlord unless accepted by Landlord, in writing,
specifying the effective surrender of the Premises.
At the expiration or termination of the Lease Term,
Tenant shall deliver to Landlord all keys to the
Premises and make known to Landlord the location and
combinations of all locks, safes and similar items.
33. NO WAIVER; CUMULATIVE REMEDIES: No waiver of any provision of this
Lease by either party will be deemed to imply or constitute a further waiver by
such party of the same or any other provision hereof. The rights and remedies of
Landlord under this Lease or otherwise are cumulative and are not intended to be
exclusive and the use of one will not be taken to exclude or waive the use of
another, and Landlord will be entitled to pursue all rights and remedies
available to landlords under the laws of the State of Florida. Landlord, in
addition to all other rights which it may have under this Lease, hereby
expressly reserves all rights in connection with the Building or the Premises
not expressly and specifically granted to Tenant under this Lease and Tenant
hereby waives all claims for damages, loss, expense, liability, eviction or
abatement it has or may have against Landlord on account of Landlord's exercise
of its reserved rights, including, but not limited to, Landlord's right to alter
the existing name, address, style or configuration of the Building or the common
areas, signage, suite identifications, parking facilities, lobbies, entrances
and exits, elevators and stairwells.
34. WAIVER OF JURY TRIAL: TO THE EXTENT PERMITTED BY LAW, TENANT HEREBY
WAIVES: (A) JURY TRIAL IN ANY ACTION OR PROCEEDING REGARDING A MONETARY DEFAULT
BY TENANT AND/OR LANDLORD'S RIGHT TO POSSESSION OF THE PREMISES, AND (B) IN ANY
ACTION OR PROCEEDING BY LANDLORD FOR MONIES OWED BY TENANT AND/OR POSSESSION OF
THE PREMISES, THEN TENANT WAIVES THE RIGHT TO INTERPOSE ANY CROSSCLAIM OR
COUNTERCLAIM (EXCEPT A MANDATORY CROSSCLAIM OR COUNTERCLAIM IF THE SAME IS
PROVIDED FOR PURSUANT TO FLORIDA LAW). HOWEVER, THE FOREGOING WILL NOT PROHIBIT
TENANT FROM BRINGING A SEPARATE LAWSUIT AGAINST LANDLORD.
35. CONSENTS AND APPROVALS: If Tenant requests Landlord's consent or
approval under this Lease, and if in connection with such requests Landlord
deems it necessary to seek the advice of its attorneys, architects and/or other
experts, then Tenant shall pay the reasonable fee of Landlord's attorneys,
architects and/or other experts in connection with the consideration of such
request and/or the preparation of any documents pertaining thereto.
36. RULES AND REGULATIONS: Tenant agrees to abide by all rules and
regulations attached hereto as Exhibit "B" and incorporated herein by this
reference, as reasonably amended and supplemented from time to time by Landlord.
Landlord will not be liable to Tenant for violation of the same or any other act
or omission by any other tenant.
37. SUCCESSORS AND ASSIGNS: This Lease will be binding upon and inure to
the benefit of the respective heirs, personal and legal representatives,
successors and permitted assigns of the parties hereto.
38. QUIET ENJOYMENT: In accordance with and subject to the terms and
provisions of this Lease, Landlord warrants that it has full right to execute
and to perform under this Lease and to grant the estate demised and that Tenant,
upon Tenant's payment of the required Rent and Other Rent and performing of all
of the terms, conditions, covenants, and agreements contained in this Lease,
shall peaceably and quietly have, hold and enjoy the Premises during the full
Lease Term.
39. ENTIRE AGREEMENT: This Lease, together with the BLI Rider, exhibits,
schedules, addenda and guaranties (as the case may be) fully incorporated into
this Lease by this reference, contains the entire agreement between the parties
hereto regarding the subject matters referenced herein and supersedes all prior
oral and written agreements between them regarding such matters. This Lease may
be modified only by an agreement in writing dated and signed by Landlord and
Tenant after the date hereof.
21
40. MISCELLANEOUS:
(a) Cross Default. If Tenant has a lease for other space
in the Building, any default by Tenant under such
lease will constitute a default hereunder.
(b) Severability; Choice of Law; Venue. If any term or
condition of this Lease or the application thereof
to any person or circumstance is, to any extent,
invalid or unenforceable, the remainder of this
Lease, or the application of such term or condition
to persons or circumstances other than those as to
which it is held invalid or unenforceable, is not to
be affected thereby and each term and condition of
this Lease is to be valid and enforceable to the
fullest extent permitted by law. This Lease will be
construed in accordance with the laws of the State
of Florida. Venue for any action arising out of this
Lease shall be Palm Beach County, Florida.
(c) NO OFFER. SUBMISSION OF THIS LEASE TO TENANT DOES
NOT CONSTITUTE AN OFFER, AND THIS LEASE BECOMES
EFFECTIVE ONLY UPON THE MUTUAL EXECUTION AND
DELIVERY BY BOTH LANDLORD AND TENANT AND THE PAYMENT
TO LANDLORD OF ANY SECURITY DEPOSITS OR ADVANCE RENT
REQUIRED HEREUNDER.
(d) Integration. Tenant acknowledges that it has not
relied upon any statement, representation, prior or
contemporaneous written or oral promises, agreements
or warranties, except such as are expressed herein.
(e) Personal Property Taxes. Tenant will pay before
delinquency all taxes assessed during the Lease Term
against any occupancy interest in the Premises or
personal property of any kind owned by or placed in,
upon or about the Premises by Tenant.
(f) Pre-Lease Commencement Occupancy. If Tenant, with
Landlord's consent, occupies the Premises or any
part thereof prior to the beginning of the Lease
Term, all provisions of this Lease will be in full
force and effect commencing upon such occupancy, and
Base Rent and Other Rent, where applicable, for such
period will be paid by Tenant at the same rate
herein specified.
(g) Brokers Each party represents and warrants that it
has not dealt with any agent or broker in connection
with this transaction except for the agents or
brokers specifically set forth in the BLI Rider with
respect to each Landlord and Tenant. If either
parties' representation and warranty proves to be
untrue, such party will indemnify the other party
against all resulting liabilities, costs, expenses,
claims, demands and causes of action, including
reasonable attorneys' fees and costs through all
appellate actions and proceedings, if any. The
foregoing will survive the end of the Lease Term.
(h) No Recording. Neither this Lease nor any memorandum
hereof will be recorded by Tenant.
(i) Landlord's Consents. Whenever under this Lease
Landlord's consent or approval is expressly or
impliedly required, the same may be arbitrarily
withheld except as otherwise specified herein.
(j) No Partnership. Nothing contained in this Lease
shall be deemed by the parties hereto or by any
third party to create the relationship of principal
and agent, partnership, joint venturer or any
association between Landlord and Tenant, it being
expressly understood and agreed that neither the
method of computation of Rent nor any other
provisions contained in this Lease nor any act of
the parties hereto shall be deemed to create any
relationship between Landlord and Tenant other than
the relationship of landlord and tenant.
22
(k) Construction of Certain Terms; Headings. Whenever in
this Lease the context allows, the word "including"
will be deemed to mean "including without
limitation". The headings of articles, sections or
paragraphs are for convenience only and shall not be
relevant for purposes of interpretation of the
provisions of this Lease.
(l) No-Air Rights. This Lease does not create, nor will
Tenant have, any express or implied easement for or
other rights to air, light or view over or about the
Building or any part thereof.
(m) Delegation by Landlord. Any acts to be performed by
Landlord under or in connection with this Lease may
be delegated by Landlord to its managing agent or
other authorized person or firm.
(n) Construction. This Lease shall not be more strictly
construed against either party hereto by reason of
the fact that one party may have drafted or prepared
any or all of the terms and provisions hereof. It is
acknowledged that each of the parties hereto has
been fully represented by legal counsel and that
each of such legal counsel has contributed
substantially to the content of this Lease.
(o) Confidentiality of Terms. Landlord and Tenant
acknowledge that the terms and provisions of this
Lease have been negotiated based upon a variety of
factors, occurring at a coincident point in time,
including, but not limited to: (i) the individual
principals involved and the financial strength of
Tenant, (ii) the nature of Tenant's business and use
of the Premises, (iii) the current leasing market
place and the economic conditions affecting rental
rates, (iv) the present and projected tenant mix of
the Building, and (v) the projected juxtaposition of
tenants on the floor(s) upon which the Premises are
located and the floors within the Building.
Therefore, recognizing the totality, uniqueness,
complexity and interrelation of the aforementioned
factors, the Tenant agrees to use its best efforts
not to disseminate in any manner whatsoever,
(whether by word of mouth, mechanical reproduction,
physical tender or by any manner of visual or aural
transmission or review) the terms and conditions of
this Lease to third parties who could in any way be
considered presently or in the future as prospective
tenants for this or any other leasehold property
with which Landlord may be involved. The foregoing
notwithstanding, Tenant may disclose such
information regarding this Lease as may be
reasonably required in any filings which Tenant is
required to make with the Securities and Exchange
Commission of the United States of America.
(p) Parties Bound. If more than one person or entity is
named herein as Tenant, their liability hereunder
will be joint and several. In case Tenant is a
corporation or limited liability company, Tenant (a)
represents and warrants that this Lease has been
duly authorized, executed and delivered by and on
behalf of Tenant and constitutes the valid and
binding agreement of Tenant in accordance with the
terms hereof, and (b) Tenant shall deliver to
Landlord or its agent, concurrently with the
delivery of this Lease, executed by Tenant,
certified resolutions of the board of directors (and
shareholders, if required) or managers (and members,
if required) authorizing Tenant's execution and
delivery of this Lease and the performance of
Tenant's obligations hereunder. In case Tenant is a
partnership, Tenant represents and warrants that all
of the persons who are general or managing partners
in said partnership have executed this Lease on
behalf of Tenant, or that this Lease has been
executed and delivered pursuant to and in conformity
with a valid and effective authorization therefor by
all of the general or managing partners of such
partnership, and is and constitutes the valid and
binding agreement of the partnership and each and
every partner therein in accordance with its terms.
It is agreed that each and every present and future
partner in Tenant shall be and remain at all times
jointly and severally liable hereunder and that
neither the death, resignation or withdrawal of any
partner, nor the subsequent modification or waiver
of any of the terms and provisions of this Lease,
shall release the liability of such partner under
the terms of this Lease unless and until Landlord
shall have consented in writing to such release.
23
(q) Proposed Use. Landlord has made no inquiries about
and makes no representations (express or implied)
concerning whether Tenant's proposed use of the
Premises is permitted under applicable law,
including applicable zoning law; should Tenant's
proposed use be prohibited, Tenant shall be
obligated to comply with applicable law and this
Lease shall nevertheless remain in full force and
effect.
(r) Telecommunications Services. Tenant and its
telecommunications companies, including local
exchange telecommunications companies and
alternative access vendor services companies, shall
have no right to access to and within the Building,
for the installation and operation of
telecommunications systems, including voice, video,
data, internet, and any other services provided over
wire, fiber optic, microwave, wireless, and any
other transmission systems ("Telecommunications
Services"), for part or all of Tenant's
telecommunications within the Building and from the
Building to any other location without Landlord's
prior written consent, which consent may be withheld
in Landlord's absolute discretion. All providers of
Telecommunications Services shall be required to
comply with the rules and regulations of the
Building, applicable laws and Landlord's policies
and practices for the Building. Tenant acknowledges
that Landlord shall not be required to provide or
arrange for any Telecommunications Services and that
Landlord shall have no liability to Tenant or
Tenant's Agents in connection with the installation,
operation or maintenance of Telecommunication
Services or any equipment or facilities relating
thereto. Tenant, at Tenant's sole cost and expense
and for its own account, shall be solely responsible
for obtaining all Telecommunications Services in
connection with the Premises. No interruption or
discontinuance of any Telecommunications Services
will be deemed an eviction or a disturbance of
Tenant's use and possession of the Premises or any
part thereof, or render Landlord liable to Tenant
for damages or abatement of Rent or relieve Tenant
from the responsibility of performing any of
Tenant's obligations under this Lease. The existing
Telecommunication Service Equipment, listed in
Exhibit "C" is approved by Landlord.
IN WITNESS WHEREOF, the parties have executed and delivered
this Lease as of the day and year first above written.
Witnesses: "LANDLORD"
--------
ZENITH PROFESSIONAL CENTER, LTD.,
a Florida limited partnership
By:3010 HOLDINGS, INC., a Florida corporation,
general partner
/s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
President
January 10th, 2003
"TENANT"
------
VFINANCE, INC., a Delaware corporation
authorized to do business in the State of
Florida
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Chief Executive Officer
January 10th, 2003
24
Exhibit "A"
FLOOR PLAN
A-1
Exhibit "B"
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules, stairways,
corridors, and halls shall not be obstructed or encumbered by any Tenant or used
for any purpose other than ingress and egress to and from the Premises.
2. No awnings or other projections shall be attached to the outside walls of the
Building without the prior written consent of Landlord. No curtains, blinds,
shades, or screens shall be attached to or hung in, or used in connection with,
any window or door of the Premises, without the prior written consent of
Landlord. Such awnings, projections, curtains, blinds, shades, screens, or other
fixtures must be of a quality, type, design, and color, and attached in the
manner approved by Landlord.
3. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
Premises or Building or on the inside of the Premises if the same can be seen
from the outside of the Premises without the prior written consent of Landlord
except that the name of Tenant may appear on the entrance door of the Premises.
In the event of a violation of the foregoing by Tenant, Landlord may remove same
without any liability and may charge the expense incurred by such removal to the
Tenant or Tenants violating this rule. Interior signs on doors and the directory
shall be inscribed, painted or affixed for each Tenant by Landlord at the
expense of such Tenant and shall be of a size and style acceptable to the
Landlord.
4. Tenant shall not occupy or permit any portion of the Premises demised to it
to be occupied as an office for a public stenographer or typist, or as a xxxxxx
or manicure shop, or as an employment bureau. Tenant shall not engage or pay any
employees on the Premises, except those actually working for Tenant at the
Premises, nor advertise for labor giving an address at the Premises. The
Premises shall not be used for gambling, lodging, or sleeping or for any immoral
or illegal purposes. The Premises shall not be used for the manufacture,
storage, or sale of merchandise, goods or property of any kind whatsoever.
5. The sashes, sash doors, skylights, windows, and doors that reflect or admit
light and air into the halls, passageway or other public places in the Building
shall not be covered or obstructed by any Tenant nor shall any bottles, parcels
or other articles be placed on the window xxxxx. No materials shall be placed in
the corridors or vestibules nor shall any articles obstruct any air conditioning
supply or exhaust vent.
6. The water and wash closets and other plumbing fixtures shall not be used for
any purposes other than those for which they were constructed and no sweepings,
rubbish, rags, or other substances shall be thrown therein. All damages
resulting from any misuse of the fixtures by Tenant, its servants, employees,
agents, or licensees shall be borne by Tenant.
7. No Tenant shall xxxx, paint, drill into, or in any way deface any part of the
Premises or the Building of which they form a part. No boring, cutting, or
stringing of wires shall be permitted, except with the prior written consent of
Landlord, and as it may direct. Should a Tenant require telegraphic, telephonic,
annunciator or other communication service, Landlord will direct the
electricians where and how wires are to be introduced and placed, and none shall
be introduced or placed except as Landlord shall direct. Electric current shall
not be used for power or heating without Landlord's prior written permission.
Neither Tenant nor Tenant's Agents including, but not limited to, electrical
repairmen and telephone installers, shall lift, remove or in any way alter or
disturb any of the interior ceiling materials of the Premises or Building, nor
shall any of same have any access whatsoever to the area above the interior
ceiling of the Premises or the Building except with the prior written consent of
Landlord and in accordance with guidelines established by Landlord. No antennas
shall be permitted.
8. No bicycles, vehicles, or animals of any kind shall be brought into or kept
in or about the Premises, and no cooling shall be done or permitted by any
Tenant on said Premises. No Tenant shall cause or permit any unusual or
objectionable odors to be produced upon or permeate from the Premises.
Exhibit B-1
9. Landlord shall have the right to retain a passkey and to enter the Premises
at any time, to examine same or to make such alterations and repairs as may be
deemed necessary, or to exhibit same to prospective Tenants during normal
business hours.
10. No Tenant shall make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of this or neighboring buildings
or premises or those having business with them, whether by the use of any
musical instrument, radio, talking machine, unmusical noise, whistling, singing,
or in any other way. No Tenant shall throw anything out of doors, windows, or
skylights, or down the passageways.
11. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any Tenant, nor shall any changes be made in existing locks
or the mechanism thereof. Each Tenant must, upon the termination of his tenancy
restore to the Landlord all keys of offices and toilet rooms, either furnished
to, or otherwise procured by, such Tenant. Tenant shall pay to the Landlord the
cost of any lost keys.
12. Tenant will refer all contractors, contractors' representatives and
installation technicians, rendering any service to Tenant, to Landlord for
Landlord's supervision, approval, and control before performance of any
contractual service. This provision shall apply to all work performed in the
building, including installations of telephones, telegraph equipment, electrical
devices and attachments, and installations of any nature affecting floors,
walls, woodwork, trim, windows, ceilings, equipment or any other physical
portion of the Building.
13. All removals, or the carrying in or out of any safes, freight, furniture or
bulky matter of any description must take place during the hours which the
Landlord or its agent may determine from time to time. All such movement shall
be under supervision of Landlord and in the manner agreed between Tenant and
Landlord by pre-arrangement before performance. Such pre-arrangements initiated
by Tenant will include determination by Landlord, subject to his decision and
control, of the time, method, and routing of movement and limitations imposed by
safety or other concerns which may prohibit any article, equipment or any other
item from being brought into the building. Landlord reserves the right to
prescribe the weight and position of all safes, which must be placed upon 2-inch
thick plank strips to distribute the weight. Any damage done to the Building or
to other Tenants or to other persons in bringing in or removing safes, furniture
or other bulky or heavy articles shall be paid for by the Tenant.
14. Tenant agrees that all machines or machinery placed in the Premises by
Tenant will be erected and placed so as to prevent any vibration or annoyance to
any other Tenants in the Building of which the Premises are a part, and it is
agreed that upon written request of Landlord, Tenant will, within ten (10) days
after the mailing of such notice, provide approved settings for the absorbing,
preventing, or decreasing of noise from any or all machines or machinery placed
in the Premises.
15. Each Tenant shall, at its expense, provide artificial light for the
employees of the Landlord while doing janitor service or other cleaning, and in
making repairs or alterations in said Premises.
16. The requirements of Tenant will be attended to only upon written application
at the office of the Building. Employees of Landlord shall not receive or carry
messages for or to any Tenant or other person nor contract with or render free
or paid services to any Tenant or Tenant's agent, employees, or invitees.
17. Canvassing, soliciting, and peddling in the Building is prohibited and each
Tenant shall cooperate to prevent the same.
18. Tenant shall have the free use of the mail chutes, if any, installed in the
Building, but the Landlord in no wise guarantees efficiency of the said mail
chutes and shall be in a no wise responsible for any damage or delay which may
arise from use thereof.
19. Landlord will not be responsible for lost, stolen, or damaged property,
equipment, money, or jewelry from Tenant's area or public rooms regardless of
whether such loss occurs when area is locked against entry or not.
Exhibit B-2
20. Landlord specifically reserves the right to refuse admittance to the
Building from 6 p.m. to 8 a.m. daily, or on Saturdays, Sundays or legal
holidays, to any person or persons who cannot furnish satisfactory
identification, or to any person or persons who, for any other reason in the
Landlord's judgment, should be denied access to the Premises. Landlord, for the
protection of the Tenant and Tenant's effects may prescribe hours and intervals
during the night and on Saturdays, Sundays and holidays, when all persons
entering and departing the Building shall be required to enter their names, the
offices to which they are going or from which they are leaving, and the time of
entrance and departure in a register provided for the purpose by that Landlord.
21. No Tenant, nor any of Tenant's Agents, shall at any time bring or keep upon
the Premises any inflammable, combustible, or explosive fluid, chemical, or
substance.
22. Landlord reserves the right to make such other and further reasonable rules
and regulations as in its judgment may from time to time be needful for the
safety, care and cleanliness of the Premises, and for the preservation of good
order therein and any such other or further rules and regulations shall be
binding upon the parties hereto with the same force and effect as if they had
been inserted herein at the time of the execution hereof.
Exhibit B-3
Exhibit "C"
EXISTING TELECOMMUNICATIONS EQUIPMENT
2 Bellsouth Voice T1 PRI's
2 MCI Data T1's
1 Verio Data T1
1 CSC Frame Relay
1 Bellsouth Voice ISDN
1 Brass ISDN
1 Xxxxx Xxxxxx ISDN
1 Verop ISDN
3 Bellsouth POTS Lines
Exhibit C -1
SATELLITE DISH/ANTENNA RIDER
THIS SATELLITE DISH/ANTENNA RIDER (this "Rider") is dated,
executed and delivered concurrently with the attached lease (the "Lease") by and
between ZENITH PROFESSIONAL CENTER, LTD., a Florida corporation ("Landlord") and
VFINANCE, INC., a Delaware corporation authorized to do business in the State of
Florida ("Tenant"). In the event of any conflict between the terms and
conditions of this Rider and the terms and conditions of the Lease, the terms
and conditions of this Rider shall govern.
1. The Antenna. Landlord understands that during the Lease Term, Tenant may
require communication services in connection with the operation of Tenant's
business which would necessitate the construction, installation, operation and
use by Tenant of a communication antenna, microwave and/or satellite dish,
together with related equipment, mountings and supports (collectively, the
"Antenna") on the roof of the Building. Subject to the rights of other tenants
in the Building and the terms of this Rider, Landlord shall make available to
Tenant, for Tenant's own use (and not for resale purposes) sufficient (as
reasonably determined by Landlord) space on the roof of the Building for the
Antenna at a location designated by Landlord (it being agreed that in no event
shall the area of the roof used by Tenant for the Antenna exceed ______ square
feet). Landlord shall have no obligation to reserve any portion of the roof for
Tenant's use and the use of the roof for such purposes shall be allocated on a
"first come, first served" basis. Tenant's use of the roof of the Building shall
be on a non-exclusive basis. In connection with Tenant's use of the roof of the
Building, and subject to the rights of other tenants in the Building, Landlord
shall make available to Tenant access to the roof for the construction,
installation, maintenance, repair, operation and use of the Antenna, as well as
reasonable space in the Building to run electrical and telecommunications
conduits from the Antenna to the Premises. The installation of the Antenna shall
constitute an Alteration and shall be performed at Tenant's sole cost and
expense (including, without limitation, any costs and expenses in connection
with reinforcing the roof of the Building, if required) in accordance with and
subject to the provisions of Section 12 of the Lease and except as otherwise
expressly set forth in this Rider. All of the provisions of this Lease with
respect to Tenant's obligations hereunder shall apply to the installation, use
and maintenance of the Antenna, including, without limitation, provisions
relating to compliance with insurance, indemnity, repairs and maintenance. The
license granted to Tenant in this Rider shall not be assignable by Tenant
separate and apart from this Lease.
2. Use of the Roof and the Antenna. Landlord retains the right to use the
portion of the roof on which the Antenna is located for any purpose whatsoever.
Tenant shall use the Antenna so as not to cause any interference to other
tenants or Landlord in the Building or interference with or disturbance to the
reception or transmission of communication signals by or from any antenna,
satellite dishes or similar equipment previously installed by landlord or any
other tenant in the Building or damage to or interference with the operation of
the Building or Building Systems. If after any Antenna is installed by Tenant it
is discovered that the Antenna causes any such interference, damage or
disturbance, then Tenant, at its sole cost and expense, shall relocate its
Antenna to another area on the roof designated by Landlord. If such interference
or disturbance still occurs despite such relocation, or if no portion of the
roof is available for such relocation, Tenant, at its sole cost and expense,
shall remove its Antenna from the roof of the Building. In the event Tenant
fails to relocate or remove the Antenna, Landlord may do so, and Tenant shall
promptly reimburse Landlord for any costs incurred by Landlord in connection
therewith. In no event shall Tenant's installation of the Antenna puncture or
otherwise penetrate the surface of the roof the Building.
3. Default; Remedies. If Tenant is in default under any provision of the Lease
or this Rider then, without limiting Landlord's rights and remedies, Landlord
may otherwise have under this Lease, Tenant, upon written notice from Landlord,
shall, at Tenant's sole cost and expense immediately discontinue its use of the
Antenna and remove the same from the roof of the Building.
4. Relocation. In addition to the right of Landlord to cause Tenant to relocate
the Antenna pursuant to this Rider, Landlord may at its option, at any time
during the Term after reasonable prior notice to Tenant (except in the event of
an emergency) relocate the Antenna to another area on the roof designated by
Landlord, provided that such relocation does not cause the transmission or
receipt of communication signals to be materially interrupted or impaired other
than temporarily in connection with such relocation and, except as set forth
with respect to Landlord's right to cause Tenant to relocate the Antenna
pursuant to Section 2 of this Rider, such relocation shall be performed at
Landlord's sole cost and expense.
Satellite Dish/Antenna Rider Page - 1
5. Compliance with Applicable Laws. Landlord shall not have any obligations with
respect to the Antenna or compliance with any applicable governmental laws,
rules, regulations, ordinances or any other legal requirments imposed by any
governmental authority whatsoever ("Governmental Requirements") relating thereto
(including, without limitation, the obtaining of any required permits or
licenses, or the maintenance thereof), nor shall Landlord be responsible for any
damage that may be caused to Tenant or the Antenna by any other tenant or
occupant of the Building. Landlord makes no representation that the Antenna will
be able to receive or transmit communication signals without interference or
disturbance (whether or not by reason of the installation or use of similar
equipment by others on the roof) and Tenant agrees that Landlord shall not be
liable to Tenant therefor. Tenant shall, at Tenant's sole cost and expense, keep
the Antenna and the fact that the Antenna is present at the Building, in
compliance with any and all Governmental Requirements, now existing or hereafter
imposed, including without limitation, those Governmental Requirements which may
necessistate the relocation or removal of the Antenna.
6. Appearance; Lightning Rods. Tenant, at Tenant's sole cost and expense, shall
paint and maintain the Antenna in white or such other color as Landlord shall
determine and shall install such lightning rods or air terminals on or about the
Antenna as Landlord may reasonably require.
7. Tenant's Obligations. Tenant shall (i) be solely responsible for any damage
caused to Landlord or any other person or property as a result of the
installation, maintenance or use of the Antenna, (ii) promptly pay any tax,
license, permit or other fees or charges imposed pursuant to any Requirements
relating to the installation, maintenance or use of the Antenna, (iii) promptly
comply with all precautions and safeguards recommended by Landlord's insurance
company and all Governmental Authorities, and (iv) perform all necessary repairs
or replacements to, or maintenance of, the Antenna, except that at Landlord's
option, Landlord may elect to perform such repairs, replacements or maintenance
at Tenant's sole cost and expense.
8. Licence. Tenant acknowledges and agrees that the privileges granted Tenant
under this Rider shall merely constitute a license and shall not, now or at any
time after the installation of the Antenna, be deemed to grant Tenant a
leasehold or other real property interest in the Building or any portion
thereof. The license granted to Tenant in this Rider shall automatically
terminate and expire upon the expiration or earlier termination of this Lease
and the termination of such license shall be self-operative and no further
instrument shall be required to effect such termination. The foregoing
notwithstanding, upon request by Landlord, Tenant, at Tenant's sole cost and
expense, promptly shall execute and deliver to Landlord, in recordable form, any
certificate or other document confirming the termination of Tenant's right to
use the roof of the Building.
9. Ratification. Except as expressly set forth herein, the Lease is ratified and
confirmed as written.
IN WITNESS WHEREOF, Landlord and Tenant have executed and
delivered this Rider concurrently with the Lease.
Witnesses: "LANDLORD"
--------
ZENITH PROFESSIONAL CENTER, LTD.,
a Florida limited partnership
By: 3010 HOLDINGS, INC.,
a Florida corporation, general
partner
/s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
President
January 10th, 2003
Satellite Dish/Antenna Rider Page - 2
"TENANT"
VFINANCE, INC., a Delaware
corporation authorized to do
business in the State of Florida
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Chief Executive Officer
January 10th, 2003
Satellite Dish/Antenna Rider Page - 3
RIGHT OF FIRST REFUSAL RIDER
This Right of First Refusal Rider (this "Rider") is dated, executed and
delivered concurrently with the attached lease (the "Lease") by and between
ZENITH PROFESSIONAL CENTER, LTD., a Florida limited partnership ("Landlord") and
VFINANCE, INC., a Delaware ("Tenant"). In the event of any conflict between the
terms of this Rider and the terms of the Lease, the terms of this Rider shall
govern.
1. Grant of Right. Subject to the terms of paragraphs 2 and 3 below, Landlord
hereby grants to Tenant a right of first refusal (the "Refusal Right") with
respect to any space located on the third floor of the Building (the "Refusal
Space") during the Lease Term.
2. Exercise of Rights; Applicable Terms. With respect to the Refusal Space:
(a) Landlord shall notify Tenant in writing of (i) Landlord's receipt of a bona
fide written acceptable offer to lease all or part of the Refusal Space, and
(ii) the relevant lease terms pertaining thereto prior to the intended
commencement date for such new tenant.
(b) Tenant shall, provided Tenant is then in possession of an amount of space
not less than the entire Premises originally set forth in the Lease and provided
Tenant is not then or at the date of delivery of possession of the subject
portion of the Refusal Space in default of this Lease, have the right to lease
from Landlord the portion of the Refusal Space covered in Landlord's notice on
the terms and conditions of this Lease except for (i) improvement allowance,
Landlord's build-out obligations, free rent provisions, parking charges, etc.,
which, although applicable to this Lease, shall not be applicable to the Refusal
Space and (ii) Base Rent with respect to the Refusal Space shall be either the
Base Rent set forth in Section 3 of the Lease or the Base Rent set forth in the
bona fide written offer, whichever is less, and (iii) Tenant's Percentage Share
shall be adjusted accordingly.
(c) Tenant shall have a period of ten (10) days from the date of Landlord's
notification to elect, by written notification delivered to Landlord within such
ten (10) day period, whether it shall exercise its Refusal Right.
(d) If Tenant wishes to exercise the Refusal Right and so delivers written
notice to Landlord within the aforesaid ten (10) day period, then Landlord and
Tenant shall execute an amendment to this Lease within five (5) days thereafter
setting forth all relevant terms pertaining to the subject portion of the
Refusal Space, including Base Rent, Commencement Date, Tenant's Percentage Share
and Expiration Date.
3. Failure to Exercise. If Tenant no longer has the Refusal Right pursuant to
other provisions of this Rider or the Lease, or fails to properly exercise
within the ten (10) day exercise period or fails to enter into an amendment
within the five (5) day execution period, then the Refusal Right, with respect
to the subject portion of the Refusal Space then being negotiated by Landlord,
shall thereupon and thereafter be null, void and of no further force or effect.
LANDLORD AND TENANT ACKNOWLEDGE AND AGREE THAT TIME IS OF THE ESSENCE FOR
TENANT'S EXERCISE OF ANY REFUSAL RIGHT. LANDLORD IS NOT OBLIGATED TO NOTIFY
TENANT OF ANY UPCOMING NEED TO TIMELY EXERCISE A REFUSAL RIGHT OTHER THAN TO
NOTIFY TENANT AS SET FORTH IN PARAGRAPH 2(a) ABOVE.
4. Right Not Transferable. Landlord grants to Tenant this Refusal Right
specifically due to the character and nature of Tenant. As such, if Tenant
shall, during the Lease Term or any extension thereof, assign or sublet any or
all of the Premises, this right shall not pass to any assignee or subtenant by
or through an assignment or sublease and shall terminate as of the date of
execution of any assignment or sublease.
5. Ratification. Except as expressly set forth herein, the Lease is ratified and
confirmed as written.
1
Witnesses: "LANDLORD"
--------
ZENITH PROFESSIONAL CENTER, LTD.,
a Florida limited partnership
By: 3010 HOLDINGS, INC.,
a Florida corporation, general
partner
/s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
President
January 10th, 2003
"TENANT"
------
VFINANCE, INC., a Delaware
corporation authorized to do
business in the State of Florida
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Chief Executive Officer
January 10th, 2003
2
FIRST ADDENDUM TO OFFICE LEASE
THIS FIRST ADDENDUM TO OFFICE LEASE (this "First Addendum") is entered
into this 1st day of January, 2003 by and between ZENITH PROFESSIONAL CENTER,
LTD., a Florida limited partnership ("Landlord"), and VFINANCE INC., a Delaware
corporation ("Tenant").
RECITALS:
A. Landlord and Tenant entered into that certain Lease, of even date
herewith (the "Lease"), to which this First Addendum is attached and made an
integral part.
B. Landlord and Tenant intend to modify and amend the Lease, all as
provided for in this First Addendum.
NOW, THEREFORE, in consideration of TEN & NO/100 DOLLARS ($10.00) and
other good and valuable considerations, the receipt, adequacy and sufficiency of
which are all hereby acknowledged, Landlord and Tenant agree as follows:
1. Recitals; Capitalized Terms; Conflict. The foregoing Recitals are true and
correct and are incorporated herein by this reference. Any capitalized term not
defined in this First Addendum shall have the meaning ascribed to such term in
the Lease. In the event of any conflict between the terms and conditions set
forth in this First Addendum and those set forth in the Lease, the terms and
conditions of this First Addendum shall apply.
2. Configuration of Premises. Subject to Landlord preparing plans and
specification and obtaining any and all building permits required, Landlord
shall within a reasonable period of time after the Lease Commencement Date
complete the following improvements to configure and improve the Premises (the
following items 2.(a), (b) and (c) are collectively referred to herein as the
"Improvements").
(a) Demising Walls. Landlord, shall install demising walls at the points
indicated as item 2.(a) in Exhibit "A" to the Lease in order to divide the
Premises from the space adjacent to the Premises, (the "Demising Wall").
Landlord shall use it's reasonable efforts to install the Demising Wall with a
minimum of interference to Tenant.
(b) Entry Door. Landlord shall install double entry doors to the Premises in
similar style, configuration and materials to the existing entry door to the
premises being separated from the Premises, at the point indicated as item 2,(b)
in Exhibit "A" to the Lease.
(c) Executive Office and Employee Kitchen. Landlord shall configure and install
an executive office with a sound proofed wall separating such office from an
employee kitchen at the point indicated as item 2.(c) in Exhibit "A" to the
Lease. The executive office shall have a separate entrance from the main hall
way. Landlord shall install a small employee kitchen at the point indicated as
item 2.(c) in Exhibit "A" to the Lease. The employee kitchen shall have an
entrance from the main hall way and shall be furnished with equipment and
fixtures determined appropriate for the size and configuration of the kitchen,
as determined by Landlord, in Landlord's reasonable discretion.
(d) Conference Room. Landlord shall configure the conference room indicated at
point 2.(d) in Exhibit "A" to the Lease so as to remove the wall and header in
said office leaving open both entry doors currently located therein.
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3. Cost of Configuration; Cost of Existing Improvements. The cost of completing
the Improvements shall be shared between Landlord and Tenant, with each party
paying fifty percent (50%) of the cost of the Improvements, provided however,
that Tenant shall not be obligated to pay more than $20,000 for the
Improvements. Tenant's share of the costs of the Improvements shall be due and
payable in twelve (12) equal installments, paid monthly along with Tenant's
payment of Rent, and shall be deemed to be a part of the Rent payment due each
month, until the Improvements are paid for in full. In the event that any
improvements or removal of improvements within the Premises were undertaken by
Tenant, or Tenant's predecessor in interest, for which proper building permits,
inspections and approvals from the City of Boca Raton, Florida, where not
obtained, Tenant shall be responsible for any and all costs, obligations, fines,
liabilities or charges arising out of, or in anyway connected with such
improvements or removal of improvements. Tenant shall promptly remit such
amounts as may be due for such improvements or removal of improvements upon
demand by Landlord.
4. Leasing Commission.
(a) Tenant's Leasing Commission Share. In the event that Tenant does not
exercise that certain Right of First Refusal as provided for in the Right of
First Refusal Rider to the Lease, and Landlord leases the Refusal Space to
another tenant, then Tenant shall pay to Landlord one half (1/2) of the gross
leasing commission which Landlord was required to pay in connection with the
lease of the Refusal Space to the other Tenant, not to exceed $25,000 (the
"Tenant's Leasing Commission Share"). The Tenant's Leasing Commission Share
shall be due and payable in twelve (12) equal installments, paid monthly along
with Tenant's payment of Rent, and shall be deemed to be a part of the Rent
payment due each month, until the Tenant's Leasing Commission Share is paid in
full.
(b) Tenant Procures Tenant for Refusal Space. In the event that Tenant procures
a prospective tenant for the Refusal Space and such prospective tenant is not
represented by a real estate broker, then Landlord shall pay a real estate
brokerage commission to Xxxxxxx Real Estate Group equal to three percent (3%) of
the gross rents paid under such lease and Tenant's Leasing Commission Share
shall be one half (50%) of such amount, and shall otherwise be paid as provided
for in Section 3.(a) above.
(c) Termination of Tenant's Obligation. Tenant's obligations to pay the Tenant's
Leasing Commission Share shall terminate and expire in the event that a lease
for the Refusal Space is not executed within eighteen (18) consecutive calendar
months of the Commencement Date of the Lease. Further, Tenant's obligation to
pay the Tenant's Leasing Commission Share shall be a one time obligation and,
once Tenant is required to pay such obligation, shall not be re-imposed for any
other subsequent leases of the Refusal Space.
5. Stock Purchase Warrant. As additional consideration for Landlord's lease of
the Premises to Tenant, Tenant has granted to Landlord certain rights to
purchase shares of the stock Tenant pursuant to the terms and conditions of the
Stock Purchase Warrant, attached to the Lease. Tenant agrees and acknowledges
that the grant of the rights under the Stock Purchase Warrant has been made for
good and adequate consideration.
6. Signage at the Building. Tenant shall not be entitled to any Primary Building
Signage on the exterior of the Building. Landlord shall not provide Primary
Building Signage on the exterior of the Building to either (i) Parthenon Studios
(a current tenant in the Building), or similar day spa or salon type user or
(ii) any other current or future tenant in the building engaged in the
securities brokerage, investment banking business. "Primary Building Signage"
shall mean any sign depicting a company name and/or logo on the western exterior
of the building, facing Military Trail. Primary Building Signage shall not
include any signs on the pylon sign for the Building, and smaller signage
adjacent to the entry-ways to the Building, any interior directory or other
interior signage at the Building.
7. Ratification. Except as expressly set forth in this First Addendum, the Lease
is ratified and confirmed as written.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered
this Second Amendment as of the Effective Date.
4
"LANDLORD"
ZENITH PROFESSIONAL CENTER, LTD.,
a Florida limited partnership
By: 3010 HOLDINGS, INC.,
a Florida corporation, general
partner
/s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
President
January 10th, 2003
"TENANT"
------
VFINANCE, INC., a Delaware
corporation authorized to do
business in the State of Florida
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Chief Executive Officer
January 10th, 2003
5
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR ANY OTHER APPLICABLE SECURITIES LAWS IN RELIANCE UPON AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH OTHER SECURITIES LAWS.
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF MAY BE SOLD,
PLEDGED, TRANSFERRED, ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR IN A TRANSACTION
WHICH IS EXEMPT FROM REGISTRATION UNDER THE PROVISIONS OF THE SECURITIES ACT.
STOCK PURCHASE WARRANT
To Purchase 250,000 Shares of the Common Stock of
VFINANCE, INC.
THIS CERTIFIES that, for value received, ZENITH PROFESSIONAL CENTER, LTD.,
a Florida limited partnership and/or its assigns (the "Holder"), is
entitled, upon the terms and subject to the conditions hereinafter set
forth, at any time on or after the date hereof (the "Exercise Date") and on
or prior to the close of business on the date which is five years after the
date hereof (the "Termination Date"), to subscribe for and purchase from
vFinance, Inc. (the "Company"), up to Two Hundred and Fifty Thousand
(250,000) shares (the "Warrant Shares") of common stock, par value $.001
per share (the "Common Stock") of the Company. The purchase price of each
share of Common Stock (the "Exercise Price") under this Warrant shall be
$0.15. The Exercise Price and the number of shares for which the Warrant is
exercisable shall be subject to adjustment as provided herein. In the event
of any conflict between the terms of this Warrant and the Lease Agreement
among Company and the investors signatory thereto, including the Holder,
dated as of January 1, 2003 (the "Lease Agreement") pursuant to which this
Warrant has been issued, the Lease Agreement shall control. Capitalized
terms used and not otherwise defined herein shall have the meanings set
forth for such terms in the Lease Agreement.
1
1. Title to Warrant. Prior to the Termination Date and subject to compliance
with applicable laws and the terms of this Warrant, this Warrant and all rights
hereunder are transferable, in whole or in part, at the office or agency of the
Company by the holder hereof in person or by duly authorized attorney, upon
surrender of this Warrant together with the Assignment Form annexed hereto
properly endorsed.
2. Authorization of Shares. The Company covenants that all shares of Common
Stock which may be issued upon the exercise of rights represented by this
Warrant will, upon exercise of the rights represented by this Warrant, be duly
authorized, validly issued, fully paid and nonassessable and free from all
taxes, liens and charges in respect of the issue thereof (other than taxes in
respect of any transfer occurring contemporaneously with such issue).
3. Vesting. The Holder's right to purchase the Warrant Shares shall vest
immediately.
4. Exercise of Warrant. Except as provided in Sections 3 and 4 herein, exercise
of the purchase rights represented by this Warrant may be made at any time or
times on or after the Exercise Date, as to not less than (i) 1,000 Warrant
Shares at a time, or, (ii) if this Warrant evidences rights of a Holder to
purchase less than 2,000 unpurchased shares of Common Stock, all such
unpurchased shares, and in either case before the close of business on the
Termination Date by the surrender of this Warrant and the Notice of Exercise
Form annexed hereto duly executed, at the office of the Company (or such other
office or agency of the Company as it may designate by notice in writing to the
registered holder hereof at the address of such holder appearing on the books of
the Company) and upon payment of the Exercise Price of the shares thereby
purchased by wire transfer or cashier's check drawn on a United States bank, the
holder shall be entitled to receive a certificate for the number of shares of
Common Stock so purchased. Certificates for shares purchased hereunder shall be
delivered to the holder hereof within ten (10) Trading Days after the date on
which this Warrant shall have been exercised as aforesaid. This Warrant shall be
deemed to have been exercised and such certificate or certificates shall be
deemed to have been issued, and the Holder or any other person so designated to
be named therein shall be deemed to have become a holder of record of such
shares for all purposes, as of the date on which this Warrant is surrendered
(together with the Notice of Exercise) and payment of the Exercise Price is
made. If this Warrant shall have been exercised in part, the Company shall, at
the time of delivery of the certificate or certificates representing Warrant
Shares, deliver to the Holder a new Warrant evidencing the rights of Holder to
purchase the unpurchased shares of Common Stock called for by this Warrant,
which new Warrant shall in all other respects be identical with this Warrant.
5. No Fractional Shares or Scrip. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. As to any
fraction of a share which Holder would otherwise be entitled to purchase upon
such exercise, the Company shall pay a cash adjustment in respect of such final
fraction in an amount equal to the Exercise Price.
6. Charges, Taxes and Expenses. Issuance of certificates for shares of Common
Stock upon the exercise of this Warrant shall be made without charge to the
holder hereof for any issue or federal or state transfer tax or other incidental
expense in respect of the issuance of such certificate, all of which taxes and
expenses shall be paid by the Company, and such certificates shall be issued in
the name of the holder of this Warrant or in such name or names as may be
directed by the holder of this Warrant; provided, however, that in the event
certificates for shares of Common Stock are to be issued in a name other than
the name of the holder of this Warrant, this Warrant when surrendered for
exercise shall be accompanied by the Assignment Form attached hereto duly
executed by the holder hereof; and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any transfer tax
incidental thereto.
7. Closing of Books. The Company will not close its stockholder books or records
in any manner which prevents the timely exercise of this Warrant.
8. Transfer, Division and Combination. (a) The Holder (and its transferees and
assigns), by acceptance of this Warrant, covenants and agrees that it is
acquiring the Warrants evidenced hereby, and, upon exercise hereof, the Warrant
Shares, for its own account as an investment and not with a view to the resale
or distribution thereof. The Warrant Shares have not been registered under the
Securities Act or any state securities laws and no transfer of any Warrant
Shares shall be permitted unless the Company has received notice of such
transfer, at the address of its principal office set forth in the Lease
Agreement, in the form of assignment attached hereto, accompanied by an opinion
of counsel reasonably satisfactory to the Company that an exemption from
registration of such Warrants or Warrant Shares under the Securities Act is
2
available for such transfer, except that no such opinion shall be required after
the registration for resale by the Holder of the Warrant Shares, as contemplated
by the Registration Rights Agreement. Upon any exercise of the Warrants,
certificates representing the Warrant Shares shall bear a restrictive legend
substantially identical to that set forth on the face of this Warrant
certificate. Any purported transfer of any Warrant or Warrant Shares not in
compliance with the provisions of this section shall be null and void.
(b) This Warrant may be divided or combined with
other Warrants upon presentation
hereof at the aforesaid office of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to be issued,
signed by Holder or its agent or attorney; provided, however, that no division
of this Warrant shall be permitted which would create at Warrant with respect to
less than 1,000 Warrant Shares. Subject to compliance with Section 8(a), as to
any transfer which may be involved in such division or combination, the Company
shall execute and deliver a new Warrant or Warrants in exchange for the Warrant
or Warrants to be divided or combined in accordance with such notice.
(c) The Company shall prepare, issue and deliver at
its own expense (other than
transfer taxes) the new Warrant or Warrants under this Section 8.
(d) The Company agrees to maintain, at its aforesaid
office or the office of its transfer or registration agent, books for the
registration and the registration of transfer of the Warrants.
9. No Rights as Stockholder until Exercise. This Warrant does not entitle the
holder hereof to any voting rights or other rights as a shareholder of the
Company prior to the exercise hereof. Upon the surrender of this Warrant and the
payment of the aggregate Exercise Price, the Warrant Shares so purchased shall
be and be deemed to be issued to such holder as the record owner of such shares
as of the close of business on the later of the date of such surrender or
payment.
10. Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants
that upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant certificate or any
stock certificate relating to the Warrant Shares, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it (which shall
not exceed that customarily charged by the Company's transfer agent), and upon
surrender and cancellation of such Warrant or stock certificate, if mutilated,
the Company will make and deliver a new Warrant or stock certificate of like
tenor and dated as of such cancellation, in lieu of such Warrant or stock
certificate.
11. Saturdays, Sundays, Holidays, etc. If the last or appointed day for the
taking of any action or the expiration of any right required or granted herein
shall be a Saturday, Sunday or a legal holiday, then such action may be taken or
such right may be exercised on the next succeeding day not a Saturday, Sunday or
legal holiday.
12. Adjustments of Exercise Price and Number of Warrant Shares. (a) Stock
Splits, etc. The number and kind of securities purchasable upon the exercise of
this Warrant and the Exercise Price shall be subject to adjustment from time to
time upon the happening of any of the following. In case the Company shall (i)
pay a dividend in shares of Common Stock or make a distribution in shares of
Common Stock to holders of its outstanding Common Stock, (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares of Common
Stock, (iii) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock or (iv) issue any shares of its capital stock
in a reclassification of the Common Stock, then the number of Warrant Shares
purchasable upon exercise of this Warrant immediately prior thereto shall be
adjusted so that the holder of this Warrant shall be entitled to receive the
kind and number of Warrant Shares or other securities of the Company which he
would have been entitled to receive had such Warrant been exercised in advance
thereof. Upon each such adjustment of the kind and number of Warrant Shares or
other securities of the Company which are purchasable hereunder, the holder of
this Warrant shall thereafter be entitled to purchase the number of Warrant
Shares or other securities resulting from such adjustment at an Exercise Price
per Warrant Share or other security obtained by multiplying the Exercise Price
in effect immediately prior to such adjustment by the number of Warrant Shares
purchasable pursuant hereto immediately prior to such adjustment and dividing by
the number of Warrant Shares or other securities of the Company resulting from
such adjustment. An adjustment made pursuant to this paragraph shall become
effective immediately after the effective date of such event retroactive to the
record date, if any, for such event.
3
Reorganization, Reclassification, Merger, Consolidation or Disposition
of Assets. In case the Company shall reorganize its capital, reclassify its
capital stock (other than a change in nominal value to no nominal value, or from
no nominal value to nominal value, or as a result of a subdivision, combination
or other event described in paragraph (a) of this Section), consolidate or merge
with or into another corporation (where the Company is not the surviving
corporation or where there is a change in or distribution with respect to the
Common Stock of the Company), or sell, transfer or otherwise dispose of all or
substantially all its property, assets or business to another corporation and,
pursuant to the terms of such reorganization, reclassification, merger,
consolidation or disposition of assets, shares of common stock of the successor
or acquiring corporation, or any cash, shares of stock or other securities or
property of any nature whatsoever (including warrants or other subscription or
purchase rights) in addition to or in lieu of common stock of the successor or
acquiring corporation ("Other Property"), are to be received by or distributed
to the holders of Common Stock of the Company, then Holder shall have the right
thereafter to receive, upon exercise of this Warrant, the number of shares of
common stock of the successor or acquiring corporation or of the Company, if it
is the surviving corporation, and Other Property receivable upon or as a result
of such reorganization, reclassification, merger, consolidation or disposition
of assets by a holder of the number of shares of Common Stock for which this
Warrant is exercisable immediately prior to such event. In case of any such
reorganization, reclassification, merger, consolidation or disposition of
assets, the successor or acquiring corporation (if other than the Company) shall
expressly assume the due and punctual observance and performance of each and
every covenant and condition of this Warrant to be performed and observed by the
Company and all the obligations and liabilities hereunder, subject to such
modifications as may be deemed appropriate (as determined in good faith by
resolution of the Board of Directors of the Company) in order to provide for
adjustments of shares of Common Stock for which this Warrant is exercisable
which shall be as nearly equivalent as practicable to the adjustments provided
for in this Section 11. The foregoing provisions of this Section 11 shall
similarly apply to successive reorganizations, reclassifications, mergers,
consolidations or disposition of assets.
13. Voluntary Adjustment by the Company. The Company may at any time during the
term of this Warrant, reduce the then current Exercise Price to any amount and
for any period of time deemed appropriate by the Board of Directors of the
Company.
14. Notice of Adjustment. Whenever the number of Warrant Shares or number or
kind of securities or other property purchasable upon the exercise of this
Warrant or the Exercise Price is adjusted, as herein provided, the Company shall
promptly mail by registered or certified mail, return receipt requested, to the
holder of this Warrant notice of such adjustment or adjustments setting forth
the number of Warrant Shares (and other securities or property) purchasable upon
the exercise of this Warrant and the Exercise Price of such Warrant Shares (and
other securities or property) after such adjustment, setting forth a brief
statement of the facts requiring such adjustment and setting forth the
computation by which such adjustment was made. Such notice, in the absence of
manifest error, shall be conclusive evidence of the correctness of such
adjustment.
15. Notice of Corporate Action. If at any time:
(a) the Company shall take a record of the holders of
its Common Stock for the purpose of entitling them to receive a dividend or
other distribution, or any right to subscribe for or purchase any evidences of
its indebtedness, any shares of stock of any class or any other securities or
property, or to receive any other right, or
(b) there shall be any capital reorganization of the
Company, any reclassification or recapitalization of the capital stock of the
Company or any consolidation with or merger of the Company into, or any sale,
transfer or other disposition of all or substantially all the property, assets
or business of the Company to, another corporation or,
(c) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
4
then, in any one or more of such cases, the Company shall give to Holder (i) at
least 10 days' prior written notice of any record date for such dividend,
distribution or right or for determining rights to vote in respect of any such
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, liquidation or winding up, and (ii) in the case of any such
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up, at least 10 days' prior
written notice of the date when the same shall take place. Such notice in
accordance with the foregoing clause also shall specify (i) the date on which
any such record is to be taken for the purpose of such dividend, distribution or
right, the date on which the holders of Common Stock shall be entitled to any
such dividend, distribution or right, and the amount and character thereof, and
(ii) the date on which any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution, liquidation or winding
up is to take place and the time, if any such time is to be fixed, as of which
the holders of Common Stock shall be entitled to exchange their shares of Common
Stock for securities or other property deliverable upon such disposition,
dissolution, liquidation or winding up. Each such written notice shall be
sufficiently given if addressed to Holder at the last address of Holder
appearing on the books of the Company and delivered in accordance with Section
17(d).
16. Authorized Shares. The Company covenants that during the period the Warrant
is outstanding, it will reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the issuance of the Warrant Shares
upon the exercise of any purchase rights under this Warrant. The Company further
covenants that its issuance of this Warrant shall constitute full authority to
its officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for the Warrant Shares upon the
exercise of the purchase rights under this Warrant. The Company will take all
such reasonable action as may be necessary to assure that such Warrant Shares
may be issued as provided herein without violation of any applicable law or
regulation, or of any requirements of the Principal Market upon which the Common
Stock may be listed.
The Company shall not by any action, including,
without limitation, amending its certificate of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such actions as may be necessary or appropriate to protect the
rights of Holder against impairment. Without limiting the generality of the
foregoing, the Company will (a) not increase the par value of any shares of
Common Stock receivable upon the exercise of this Warrant above the amount
payable therefor upon such exercise immediately prior to such increase in par
value, (b) take all such action as may be necessary or appropriate in order that
the Company may validly and legally issue fully paid and nonassessable shares of
Common Stock upon the exercise of this Warrant, and (c) use its best efforts to
obtain all such authorizations,exemptions or consents from any public regulatory
body having jurisdiction thereof as may be necessary to enable the Company to
perform its obligations under this Warrant.
Before taking any action which would result in an
adjustment in the number of shares of Common Stock for which this Warrant is
exercisable or in the Exercise Price, the Company shall obtain all such
authorizations or exemptions thereof, or consents thereto, as may be necessary
from any public regulatory body or bodies having jurisdiction thereof.
17. Miscellaneous.
(a) Jurisdiction. This Warrant shall be binding upon any successors or
assigns of the Company. This Warrant shall constitute a contract under the
laws of New York without regard to its conflict of law, principles or rules,
and be subject to arbitration pursuant to the terms set forth in the Lease
Agreement.
(b) Restrictions. The holder hereof acknowledges that the Warrant
Shares acquired upon the exercise of this Warrant, if not registered, will
have restrictions upon resale imposed by state and federal securities laws.
(c) Nonwaiver and Expenses. No course of dealing or any delay or
failure to exercise any right hereunder on the part of the Holder shall
operate as a waiver of such right or otherwise prejudice Holder's rights,
powers or remedies, except that all rights hereunder terminate on the
Termination Date. If the Company fails to comply with any provision of this
Warrant, the Company shall pay to the Holder such amounts as shall be
sufficient to cover any costs and expenses including, but not limited to,
reasonable attorneys' fees, including those of appellate proceedings, incurred
by the Holder in collecting any amounts due pursuant hereto or in otherwise
enforcing any of its rights, powers or remedies hereunder.
5
(d) Notices. Any notice, request or other document required or
permitted to be given or delivered to the holder hereof by the Company shall
be delivered in accordance with the notice provisions of the Lease Agreement.
(e) Limitation of Liability. No provision hereof, in the absence of
affirmative action by Holder to purchase shares of Common Stock, and no
enumeration herein of the rights or privileges of Holder hereof, shall give
rise to any liability of the Holder for the purchase price of any Common Stock
or as a stockholder of the Company, whether such liability is asserted by the
Company or by creditors of the Company.
(f) Remedies. The Holder, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Warrant. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Warrant and hereby agrees
to waive the defense in any action for specific performance that a remedy at
law would be adequate.
(g) Successors and Assigns. Subject to applicable securities laws, this
Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors of the Company and the
successors and permitted assigns of the Holder. The provisions of this Warrant
are intended to be for the benefit of all Holders from time to time of this
Warrant and shall be enforceable by any such Holder or holder of Warrant
Shares.
(h) Amendment. This Warrant may be modified or amended or the
provisions hereof waived only with the written consent of the Company and the
Holder.
(i) Severability. Wherever possible, each provision of this Warrant
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder
of such provisions or the remaining provisions of this Warrant.
(j) Headings. The headings used in this Warrant are for the convenience
of reference only and shall not, for any purpose, be deemed a part of this
Warrant.
(k) Registration Rights. The Company hereby agrees to grant to the
Holder Piggyback Registration rights pursuant to the terms and conditions of
Exhibit A attached hereto and incorporated herein.
6
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed by its officer thereunto duly authorized.
Dated: January 10th, 2003
VFINANCE, INC.
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Chief Executive Officer
January 10th, 2003
7
NOTICE OF EXERCISE
To: vFinance, Inc.
(1) The undersigned hereby elects to purchase ________ shares of Common Stock
(the "Common Stock"), of vFinance, Inc. pursuant to the terms of the
attached Warrant, and tenders herewith payment of the exercise price in
full, together with all applicable transfer taxes, if any.
(2) Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
-------------------------------
(Name)
-------------------------------
(Address)
-------------------------------
Dated: ______________, _______
Holder's Signature: ___________________
Holder's Name: _____________________
Holder's Address: _____________________
_____________________________
Social Security, Employer
or Other Tax Identification
Number of Holder: _____________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust company. Officers
of corporations and those acting in an fiduciary or other representative
capacity should file proper evidence of authority to assign the foregoing
Warrant.
ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are
hereby
assigned to ___________________________________________________________________
whose address is_______________________________________________________________
---------------------------------------------------------------.
Dated: ______________, _______
Holder's Signature: _____________________________
Holder's Name: _____________________________
Holder's Address: _____________________________
_____________________________
Social Security, Employer
or Other Tax Identification
Number of Holder: _____________________________
Signature Guaranteed: ___________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust company. Officers
of corporations and those acting in an fiduciary or other representative
capacity should file proper evidence of authority to assign the foregoing
Warrant.
EXHIBIT "A"
REGISTRATION RIGHTS
Capitalized terms used but not defined herein shall have the respective meanings
ascribed to such terms in the Option to which this Exhibit A is attached.
(a) PIGGY-BACK REGISTRATION RIGHTS. If at any time commencing after July 1, 2003
until the expiration of the Warrant (the "Registration Period"), vFinance, Inc.
(the "Company") proposes to register any of its securities under the Securities
Act (other than registration of a stock option, stock purchase or compensation
or incentive plan or of stock issued or issuable pursuant to any such plan, or
dividend investment plan, a registration of stock proposed to be issued in
exchange for securities or assets of, or in connection with the merger or
consolidation with, another person or entity , or a registration of stock
proposed to be issued in exchange for securities of such other person or
entity), the Company shall give prompt written notice thereof to the Holder and,
upon the written request made within ten (10) days after the Holder and, upon
receipt of such notice, the Company shall use its best efforts to effect as part
of such registration the registration under the Securities Act of that number of
the Warrant Shares ("Warrant Shares") which the Holder requests the Company to
register, provided that if the registration relates to a firm commitment,
underwritten public offering, the managing underwriter of the Company's public
offering, if any, shall be of the opinion that the inclusion in such
registration of such number of Warrant Shares will not interfere with the
successful marketing of all of the Company's securities being registered. If the
managing underwriter, if any, reasonably requests the Holder to reduce in whole
or in part the number of Warrant Shares sought or be registered by the Holder,
the Holder shall comply with the request of the managing underwriter. In any
underwritten offering, the Holder shall sell the Warrant Shares registered as
part of such underwritten offering to the underwriters of such offering on the
same terms and conditions as apply to the Company. In connection with any
registration pursuant to this Section (a), the Holder shall provide the Company
with such information regarding the Holder and the distribution of the Warrant
Shares as the Company and the managing underwriter shall reasonably request for
use in the registration statement relating to such offering. The Company shall
pay all costs and expenses of the Holder. The Company shall not be obliged to
effect registration under the Securities Act pursuant to this Section (a) on
more than one occasion; PROVIDED, HOWEVER, that this limitation shall not apply
if the number of shares requested to be registered by the Holder shall have been
reduced pursuant to the second sentence of this Section (a) unless and until the
occurrence of an occasion on which the shares requested by the Holder to be
registered have not been so reduced. The Company will pay all registration
expenses of the Holder in connection with any registration hereunder.
(b) GENERAL CONDITIONS. In connection with each registration effected pursuant
to Section (a), the Company and the Holder agree as follows:
(i) INDEMNIFICATION OF HOLDER. The Company shall indemnify and hold harmless the
Holder against any and all losses, claims, damages, or liabilities to which the
Holder may become subject under the Securities Act, or any other statute or
common law, including any amount paid in settlement of any litigation, commenced
or threatened, if such settlement is effected with the written consent of the
Company, and to reimburse them for any legal or other expenses incurred by them
in connection with investigating any claims and defending any action insofar as
any such losses, claim, damages, liabilities or actions arise out of or are
based upon 1) any untrue statement or alleged untrue statement of a material
fact, contained in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any offering
circular or other document incident to any registration, qualification or
compliance, or any omission or alleged omission to state therein any material
fact required to be stated therein or necessary to make the statements therein
not misleading, or any violation by the Company of any rule or regulation
promulgated under the Securities Act applicable to the Company and relating to
any action or inaction required of the Company in connection with any such
registration, qualification, or compliance. The indemnification agreement
contained in this agreement, however, shall not: 1) apply to such losses,
claims, damages, liabilities, or actions arising out of, or based upon, any such
untrue statement or alleged omission, if such statement or omission was in
reliance upon and in conformity with the information furnished in writing to the
Company by the Holder for use in the registration statement or any preliminary
prospectus or prospectus contained in the registration statement or any
amendment thereof or supplement thereto, or 2) inure to the benefit of any
underwriter from whom the person asserting any such losses, claims, damages,
expenses or liabilities purchased the securities which are the subject thereof
(or to the benefit of any person controlling such underwriter), if such
underwriter failed to send or give a copy of the prospectus to such person at or
prior to the written confirmation of the sale of such securities to such person.
(ii) INDEMNIFICATION OF THE COMPANY. The Holder and each underwriter of the
Warrant Shares to be registered (such party and such underwriters being referred
to severally in this subparagraph as the "Indemnifying Party") shall agree, in
the same manner and to the same extent as set forth in the preceding paragraph,
to, severally and not jointly, indemnify and hold harmless the Company and each
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act, its directors and those officers of the Company who shall have
signed such registration statement, with respect to any statement in or omission
from such registration statement or any post-effective amendment thereof or any
preliminary prospectus (as amended or supplemented, if amended or supplemented
as aforesaid) contained in such registration statement, if such statement or
omission was made in reliance upon and in conformity with information furnished
in writing to the Company by such Indemnifying Party specifically for use in
such registration statement or any preliminary prospectus or prospectus
contained in such registration statement or any amendment thereof or supplement
thereto.
(iii) NOTICE OF INDEMNIFIABLE ACTION. Each indemnified party will, promptly
after the receipt of notice of the commencement of any action against such
indemnified party in respect of which indemnity may be sought from a party
hereto on account of an indemnity agreement contained in this Section, notify
the indemnifying party in writing of the commencement thereof. The omission of
any indemnified party so to notify an indemnifying party of any such action
shall relieve the indemnifying party from any liability in respect of such
action which it may have to such indemnified party not (unless the failure to
give such notice has actually prejudiced the indemnifying party) on account of
the indemnity agreement contained in this Section.
(iv) TERMINATION OF OBLIGATION. The Company shall not be required to file a
registration statement or to keep a registration statement effective if the
Warrant Shares could be publicly sold in any 90 day period without registration
under the Securities Act.
